You may be wondering … Are these the only options? What difference does it make? The answer of course depends (don’t you hate that?). Don’t worry; it’s not too complicated in the end, so here goes…
Understanding Unfair Dismissal
The first thing to be aware of is that in terms of unfair dismissal, the probationary period you state in your contract doesn’t hold much weight. Many managers and business owners believe that if the person is within their probationary period then they can terminate their employment with no risk. This is not correct in terms of the time period and also the words “no risk”, which I will explain later.
Qualifying Period for Unfair Dismissal
The most relevant factor in terms of timing is actually the “qualifying period” for unfair dismissal, which is determined by Fair Work Australia. For employers who have 15 or more employees, this is a 6 month period and for those with less than 15 employees it is a 12 months period. There also exists other factors that are important in terms of qualifying for unfair dismissal; such as if they are an employee at all. However, I won’t go into depth on that given we are talking mainly about probationary periods, so for this purpose we will assume the person is a permanent employee (I always find that term funny, what is “permanent” anymore these days anyway?).
Probationary vs Qualifying Periods
So essentially, employees who have worked for less than the qualifying period are not eligible to apply for unfair dismissal. This has nothing to do with the probationary period and stands independently. If you had a 9 month probationary period and you have 15 or more employees (therefore having a 6 month qualifying period) and you terminate before 9 months but after 6 months they can still bring a claim for unfair dismissal against you. If you have a probationary period of 3 months and terminate at 4 months, they cannot bring an unfair dismissal claim against you. In both cases, the relevant factor is the qualifying period, not the probationary period. What you do need to be mindful of is any notice period difference in your contracts if they exist in relation to their being in their probationary period or not. If you are paying out their notice period, it needs to be what you have stipulated in their contracts (assuming they are legally compliant). If there is no contract, you should revert to the relevant modern award. The question therefore is,
Should you align your probationary period to the qualifying period for unfair dismissal or not?
My thoughts are that you should be mindful of the legislation, but you should run your business and manage you people based on what works best for your company. In most instances, it does not take 6 months to determine if someone is going to be suitable. It definitely shouldn’t take 12 months. The other thing is, most employees are not aware of the legislation around unfair dismissal, but they are acutely aware of their probationary period, because they read it in the contract you provided. That can be good or bad depending on what impact it has on their behaviour. But generally for good employees they want to feel they have passed their probation period and often is a source of frustration (especially when this is not acknowledged by their manager) and their preference is always for a shorter time period.
I tend think that 3 months is plenty of time to determine if the employee is suitable. The only downside is if you have a 4 week notice period for people not on probation and you don’t manage to your 3 months, it will cost you more if you need to terminate someone. The argument I hear against this is sometimes that in certain roles it takes longer to work out, such as in business-to-business sales roles. I challenge that notion if you have good leading indicators in place and measure them regularly. “He just needs to land that one big deal and he will be performing”. Well, how is he going with his activities? Have you been out on joint visits? How effective is he at running those meetings? How is his follow up? Do his proposals meet the mark? How well does he follow those up?
Whether you have 3 or 6 months from a contractual or policy perspective is up to you. Legally, you mainly need to be mindful of the qualifying period for unfair dismissal, whether it is 6 or 12 months. But you should be managing to 3 months or even sooner regardless. It’s achievable, saves you time, money and is more engaging for the better employees anyway.
Avoiding Claims of Unfair Dismissal
One final word of caution: terminating an employee is never without risk. Unfair dismissal is just one avenue and there other avenues they can take for other reasons (e.g. if they believe they are being unlawfully discriminated against). The best thing is to be objective, provide clear performance measures, specific and regular feedback, relevant and effective training and development and to make difficult decisions earlier after giving the employee reasonable chances to improve. This is whether they have been there for 3 days, 3 months or 3 years. Be very mindful of the law, but don’t let it run your business for you.
Employee Probationary Periods
So, to answer the question about having a 3 month or 6 month probationary period.
3 Month Probationary Period
– Choose 3 months if you know you will be vigilant about managing performance early on.
6 Month Probationary Period
– Choose 6 months if you want a buffer in there, but try to manage to 3 months to determine whether they are likely to work out or not
12 Month Probationary Period
– Choose 12 months if you have less than 15 employees, are incredibly risk averse and want to frustrate your new people (hopefully you noted the sarcasm in there)
Regardless of your decision, always remember to:
- Be vigilant in performance management, and even more so with new employees. With a strong performance management system in place, you should be able to determine very swiftly whether you have hired the right person for the role or not.
- Know your qualifying period for unfair dismissal (which is independent from a probationary period) see below:
o Employers with 15 or more employees = 6 month qualifying period
o Employers with less than 15 employees = 12 month qualifying period
- Recognise that terminating an employee is never without risk, it’s up to you to minimise it.
Disclaimer: The information contained within this article is based on our best knowledge and we believe all facts to be true at the time of writing. We take no responsibility for any application of this information, as it does not constitute legal advice (and should not be taken as such).