Dismissal During a Probationary Period | Armstrong Legal

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This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Dismissal During a Probationary Period


When a person commences employment at a new workplace, the contract will often stipulate a probationary period. This is a period during which both the employee and employer can assess whether the person is right for the job. During the probationary period, an employee does not have as many protections from dismissal as they do once the probationary period has ended. However, a worker subject to a probationary period still has some legal protections. This article examines the legal protections that exist for employees who are subjected to dismissal during a probationary period of a contract.

Length of probationary period

A probationary period generally runs for between three months and six months. It commences when the employee starts working under the contract and finishes on the day stipulated.

A person who is subject to a probationary period as part of an employment contract will generally be formally notified at the end of the period as to whether or not they have successfully completed their probationary period.

Entitlements during a probationary period

A worker who is on a probationary period has the same entitlements as one who has completed their probationary period. They receive the same rate of pay and the same paid leave entitlements.

If a person’s employment is terminated during their probationary period, they are entitled to the same notice period and payment of accumulated annual leave as an employee who is not on probation.

Unfair dismissal and probationary periods

Unfair dismissal is the termination of employment in an unjust, harsh or unreasonable manner. A person is entitled to make a claim for unfair dismissal to the Fair Work Commission only if they have been in the job for six months or more. A person employed by a small business (a business with fewer than 15 employees) cannot make an unfair dismissal claim until they have been in the job for 12 months. As such, unfair dismissal is not a claim that is available to a worker who is still within their probationary period (Section 382, Fair Work Act).

Unlawful dismissal and probationary periods

Unlawful dismissal is the termination of employment for a proscribed reason. Prescribed reasons are set out in section 772 of the Fair Work Act. They include:

  • Temporary absence from home because of illness or injury;
  • Trade union membership or activities;
  • Seeking to act, or having acted, as a representative of employees;
  • The filing of a complaint or proceedings against an employer for alleged violation of laws;
  • The person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  • Absence while on maternity or parental leave;
  • Absence from work while engaging in voluntary emergency management activities, such as voluntary fire-fighting or rescue work.

However, a person may have their employment terminated for one of the reasons listed above, where this is based on the inherent requirements of the job or where the person is employed by a religious institution and the termination occurs in good faith and to avoid offending the sensibilities of adherents to the faith.

A person may make a claim for unlawful dismissal to Fair Work Australia even if they are still within the probationary period of their contract. A person who is subjected to dismissal during a probationary period for a proscribed reason has recourse to the same civil remedies as they would were they not on probation.

Making an unlawful dismissal claim

A person who believes they have had their employment terminated unlawfully should file a claim for unlawful dismissal with Fair Work Australia within 21 days of the date of dismissal. Fair Work may accept an application made more than 21 days after the date of dismissal if there are exceptional circumstances.

An application fee will need to be paid unless the applicant can demonstrate this would cause them financial hardship.

The Fair Work Commission will attempt to resolve the dispute via mediation or conciliation. If resolution through those means is not possible or appropriate, it may conduct arbitration between the parties. Arbitration may result in one or more of the following civil remedies:

  • An order for reinstatement of the employee;
  • An order for the payment of compensation to the employee;
  • An order for the payment of an amount to the employee for remuneration lost;
  • An order to maintain the continuity of the employee’s employment;
  • An order to maintain the period of the employee’s continuous service with the employer.

Taking a dispute to court

Where the Fair Work Commission has found that a matter is not suitable for mediation or conciliation, and has issued a certificate to that effect, the applicant may make an unlawful termination court application if they wish to seek an interim injunction.

Compensation

Section 392 of the Fair Work Act sets out how an award of compensation is to be decided. Such an award will take into account factors including the length of time the employee had been with the employer,  the remuneration they would have received had they not been dismissed, the efforts made by the person to mitigate their losses and the amount they earned from other employment between the termination and the making of the order.

The Fair Work Commission may not award compensation for the shock, distress or humiliation associated with unlawful dismissal.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

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