A probationary period is a valuable opportunity to assess whether a new employee is the right fit for your organisation. 

While often seen as a formality, it plays a critical role in the employment life cycle and should be managed with structure and care.

It allows employers to evaluate performance and cultural fit while giving employees a chance to decide if the role and workplace suit them.

What is a probationary period?

A probationary period is a defined timeframe at the start of employment that allows both employer and employee to assess their suitability. 

It typically lasts three or six months (though this is not set by law) and its duration should be clearly stated in the employment contract. 

Probation gives employees time to settle in, understand their role and demonstrate their capabilities, while employers can evaluate performance, cultural fit and compliance with workplace expectations.

Legal considerations for employers

It’s essential to recognise that a probationary period does not override an employee’s entitlements under the Fair Work Act 2009.

There is no specific ‘probationary period’ defined in the Fair Work Act but there are important legal obligations to consider.

One key concept is the minimum employment period. 

Employees are not eligible to make an unfair dismissal claim unless they have completed six months of continuous service (or 12 months if the business has fewer than 15 employees). 

However, this doesn’t mean that an employee can be dismissed for any reason during probation.

Employers must still:
•    provide the minimum notice period required under the National Employment Standards or the employment contract if ending employment during probation
•    ensure that the employee continues to accrue annual leave and personal leave and has access to all National Employment Standards entitlements
•    be mindful of other dismissal-related obligations, such as final pay and providing a written termination letter.

Importantly, even during probation, employers must comply with general protections under the Fair Work Act. 

Employees are protected from adverse action, including dismissal, because of a protected attribute (such as race, sex, age or disability) or because they have exercised a workplace right, such as lodging a complaint or requesting leave. 

A breach of these protections can result in serious legal consequences, regardless of the employee’s length of service.

Managing a probationary period

A well-managed probation period starts with clear expectations. From day 1, outline the employee’s responsibilities, performance criteria and behavioural expectations. 

A written position description and onboarding plan can help set a clear direction.

Regular communication is key. Schedule check-ins at the midway point and towards the end of the probation period. 

These meetings should cover what the employee is doing well, any areas needing improvement and what support is available.

Feedback should be honest, balanced and documented.

Employees on probation should also be given a fair chance to succeed. 

This means providing adequate training, resources and guidance. If performance issues arise, they should be raised early, with opportunities to improve before any final decisions are made.

Ending employment during probation

If an employer decides to end employment during or at the end of probation, it’s important to follow a fair and respectful process.

While unfair dismissal laws may not apply, basic procedural fairness is still encouraged.

Key steps include:
•    holding a formal discussion with the employee to outline the reasons for the decision
•    providing the required notice period (in line with the National Employment Standards or contract)
•    issuing a written termination letter that confirms the end date and notice terms
•    paying all outstanding entitlements, including any accrued leave.

Employers should avoid delaying decisions until the very end of the probation period because this may affect team planning or result in rushed discussions without proper documentation.

Confirming ongoing employment

If the probationary period is successful, it’s good practice to confirm ongoing employment in writing—typically via a brief letter or email. 

This is also a valuable opportunity to check in on future goals, training needs or any outstanding questions as the employee transitions into a longer-term role.

Common mistakes to avoid

Employers can run into trouble when probation is poorly managed. 

Common pitfalls include:
•    failing to conduct reviews or provide feedback during the probation period.

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•    assuming that legal obligations don’t apply until probation is over
•    extending probation informally or without written agreement
•    providing no support or training, setting the employee up to fail.

Each of these can undermine employee trust and increase the risk of disputes or early resignations.

Conclusion

When used correctly, probationary periods are a valuable tool for assessing new hires, building confidence and clarifying expectations. 

However, they must be managed with care, communication and legal awareness. 

A structured, two-way approach helps employers make informed decisions while fostering a respectful and compliant workplace.

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