Terminating employment during probation

Together, we'll explore the key aspects of ending employment during probation under Queensland legislation and provide best practices to ensure compliance and fairness.

What is a probation period?
A probation period is a set time frame at the start of employment, typically ranging from six months to twelve months for smaller employers, during which an employer assesses whether the new employee is suitable for the role. Similarly, employees can use this time to evaluate the workplace, the role, and whether it meets their expectations.

In Queensland, there are no specific laws under state legislation that define probation period. However, most employment relationships are governed by the Fair Work Act 2009 (Cth), which applies across Australia, including Queensland. Under this law, probation periods are generally part of the employment contract and must be reasonable and aligned with the terms of the Modern Award, if applicable.

Termination during probation
While probation periods provide flexibility, employers must still comply with employment law, particularly around fair dismissal practices. In Queensland, the following considerations are important when terminating employment during probation. 

Notice periods
During the probation period, termination notice requirements depend on the employment contract or award. If the contract outlines a notice period, employers must honour it, which typically ranges from one week to four weeks. If no notice period is specified, the National Employment Standards (NES) require employers to provide at least one week’s notice.

If an employer wishes to end the employment immediately, they may choose to pay the employee in lieu of notice, which means compensating them for the notice period instead of requiring them to work through it.

Unfair dismissal protections
Employees dismissed during probation are generally not eligible to make an unfair dismissal claim under the Fair Work Act unless they have completed at least six months of continuous service with a larger business (or 12 months in the case of small businesses with fewer than 15 employees). However, it's essential to note that unfair dismissal protections do not exempt employers from acting fairly and reasonably when ending employment during probation.

General protections against adverse action
Even during probation, employees in Queensland are protected under the general protections provisions of the Fair Work Act. These provisions prohibit employers from taking adverse action (such as dismissal) against an employee for reasons such as:

• exercising a workplace right (eg making a complaint)
• discrimination based on race, gender, age or disability
• temporary absence due to illness or injury

If an employee believes they have been terminated for an unlawful reason, they may bring a claim under the general protections provisions, even if they have not completed the minimum period for unfair dismissal claims or the Queensland Human Rights Commission in the case of discrimination.

Best practices for employers
Ending employment during probation can be a sensitive process, but following best practices can minimise legal risks and maintain fairness.

• Document performance issues: regularly document any performance concerns or behavioural issues during the probation period and ensure employees are informed. If termination is based on performance, having clear records can justify the decision.
• Provide feedback: conduct regular performance reviews and offer feedback throughout the probation period. This ensures employees are aware of any issues and gives them a chance to improve.
• Follow contractual obligations: always follow the terms of the employment contract, particularly notice periods and any applicable Award conditions. Offering payment in lieu of notice can be an option if immediate termination is necessary.
• Ensure fairness: even though probation periods allow for a degree of flexibility, ensuring the termination process is fair and transparent is crucial. Avoid dismissals that may appear arbitrary or discriminatory.
• Seek advice: in more complex cases, such as where the employee may have raised workplace grievances or has special protections, seek advice before proceeding with termination.

While ending employment during probation offers flexibility for employers to assess a new employee’s suitability, it is still subject to legal obligations under the Fair Work Act. Employers must ensure they comply with notice requirements, avoid unfair or unlawful dismissals and follow best practices to handle probation terminations fairly. By doing so, practices can manage their workforce effectively while minimising their level of risk and maintaining a mentally healthy workplace.