A common misunderstanding is the idea that an employee can be dismissed during their probation period without the need for the employer to give a substantive reason or follow a procedurally fair process.

What is a probation period?

A probation period refers to the initial months after a new employee has been hired during which both employer and employee are given the chance to evaluate whether the working relationship is to their satisfaction.

From an employee’s perspective, a probation period allows them to see whether the role fulfils their expectations as well as if the workplace is the right fit.

From an employer’s perspective, a probation period allows them to assess an employee’s true skills compared to those they represented they held in their CV and throughout the recruitment process.

Throughout and/or at the conclusion of the agreed upon period, which is usually between three to six months, either employer or employee may choose to terminate the employment should things not be progressing as expected.

A common misconception around termination during probation periods is that there is no obligation to give a minimum amount of notice as per relevant industrial instruments (ie, the Fair Work Act and the Health Professionals and Support Services Award 2020).

An employer may choose to include a provision in the employment contract for a greater amount of notice being required following probation—however, they must ensure that the employee receives at least the minimum amount of notice included in the National Employment Standards (NES) and/or the relevant award/agreement (as appropriate), regardless of whether the employee is on probation or not.

When and why can an employee be dismissed during probation?

Given that a probation period acts as somewhat of a trial period for an employment relationship, there is a common understanding that an employer can let an employee go without the need to evaluate and address poor conduct and performance.

While it is true that there is a less strict obligation on an employer to follow a thorough performance management process during an employee’s probation period, this is primarily linked to the fact that an employee doesn’t gain access to make an unfair dismissal claim until they have at least six months’ continuous service with their employer.

Employees of small business employers (those with less than 15 employees) do not gain access to unfair dismissal until they have at least 12 months’ continuous service.

This does not mean it is advisable for an employer to dismiss an employee during their probation without any prior indication or warning that this may be the case.

Firstly, this sets a poor tone from an employee morale perspective.

Other employees working for your business may observe that management doesn’t promote a culture of open communication, and fear that if they experience similar issues, they may also be subject to disciplinary measures, including termination without any prior notice.

This can lead to a whole host of issues including a lack of trust, poor relationships and even decreased productivity.

Furthermore, unfair dismissal claims are not the only avenue open to employees who believe they have been wrongfully dismissed.

If an employee is terminated during their probation period, they may explore other legal avenues to challenge their termination.

In essence, dismissing an employee without any performance counselling during their probation period may not prevent your practice from being subjected to legal challenges.

What should be done to manage performance during a probation period?

We recommend that employers create opportunities for regular, ongoing feedback throughout an employee’s probation period.

The exact form may vary depending on your specific business. However, this may involve:

• scheduling weekly/fortnightly/monthly catch-ups


• organising a mid-probation check-in


• appointing mentors to coach new starters throughout their probation.

If an employee is not meeting expectations during probation, the above actions will ensure that they have been made aware of the need to improve and afforded genuine support to reach their maximum potential.

Not only does this minimise potential legal headaches if termination is the ultimate result, but it may also avoid the need to restart the recruitment process over as the employee may improve when given the chance.

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