Power of the Probationary Period

The definition of a probationary period is a two-way opportunity. It means that a new employee and the employer have an opportunity to determine whether the newly hired employee is suitable for the company and for the employee to determine whether they want to continue working for the employer.
Adding value to the business is the key factor for the employer despite going through a recruitment process to determine the if the newly hired employee is indeed the right person for the job.
If the employer is of the view that the employee is not a good fit, then it is best to take swift action.
Do not wait until the last day of the probationary to inform the employee that they have not passed their probationary period and terminate employment.

Key steps to take during the probationary period:

  1. Clearly define expectations so that the employee knows what is expected from them.
  2. Communication throughout the probationary period will assist both parties to establish a meaningful working relationship. Mentoring and coaching will help the employee to settle down quicker in the company and feel valued. It will dramatically reduce any issues that arise later down the track.
  3. Regular meetings to discuss performance will reduce any surprises at the end of the probationary period and minimise the risk of unfair dismissal claims and avoid paying a higher amount in lieu of notice.
  4. Terminate earlier rather than later if the issues arise relating to behaviour or attitude and if employers hope it will go away or improve over time in many cases it does not. It will get worse and more frustrating as attitude and personality rarely do change and serious considerations should be given as to whether employment should be terminated.
  5. Terminating an employee during the probationary period is not without any legal risk. Although unfair dismissal provisions do not apply in the first 6 months (or 12 months if a small business employer), employees are still protected from adverse action, discrimination and breach of contract from their first day of employment.

Under the Fair Work Act 2009 (Cth) (FWA), the ‘minimum period of employment’ is six months of continuous service. This means the usual maximum probationary period you can have for an employee is six months.
The statutory minimum notice period is one week for either party. It is not required that the employee needs to work their notice and the employer can let the employee go immediately. If an employee initiates termination during their probationary period and resigns the employer can require them to work their notice period out.

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