A worker on training wheels is still afforded regulatory protections, says Holding Redlich partner Charles Power.
An employees’ probationary period is not always the flexible, Fair Work-free zone that you might think.
“When new employees begin, it’s common for their contract to contain provisions for a probationary period − an initial period of service during which time both the employee and employer can decide whether they wish the employment to continue,” says Holding Redlich workplace health & safety partner, Charles Power.
“The periods provide an opportunity to assess the employee’s suitability for the role for which they have been recruited; however, there are many myths about probationary periods,” he says.
Myth One: Probationary period employees are exempt from Fair Work Act unfair dismissal laws
False. While it is true that under the Fair Work Act’s predecessor, the Workplace Relations Act, employees serving a reasonable period of probation were exempted from unfair dismissal laws, that exemption is not provided in the Fair Work Act.
Instead there is a requirement that in order to make a Fair Work Act unfair dismissal claim the dismissed employee must have served a minimum employment period of six months, or 12 months if the employer employs less than 15 employees. That is the case regardless of whether the employment contract includes a probationary or trial period.
Myth Two: Employers don’t have to give a probationary employee any notice of termination, or any reasons or warnings
False, to an extent. Probationary employees enjoy the same Fair Work Act entitlements to paid annual leave, paid personal/carer’s leave and minimum notice periods as non-probationary employees.
Many probationary clauses provide a lesser notice period for termination of employment during the probationary period as opposed to after the expiration of the probationary period. However, the notice period for termination during a probationary period cannot be less than the minimum periods prescribed in the Fair Work Act (one week for less than 12 months’ service).
If a probationary period matches the minimum employment period, the exclusion of unfair dismissal laws lessens the legal exposure for the employer, if they dismiss an employee before the expiration of the minimum employment period without a valid reason or warnings.
However, the dismissed employee can still challenge the dismissal on grounds that it is in breach of anti-discrimination or general protection laws or a breach of employment contract.
Therefore, when an employer decides to dismiss a probationary employee, they should still ensure they are in a position to prove the reason for dismissal and show that it is a lawful reason.
Myth Three: I can extend probationary periods if I am still unsure about a probationary employee
True and false. An employer can only extend a probationary period if the contract provides for that extension at the outset of employment, or the employee agrees to the extension at the time it is proposed. However, if the probationary period goes beyond the expiration of the minimum employment period, FW Act unfair dismissal laws will apply.
Read the full article at Brw.com.au.