How Long Should My Employee’s Probation Period Be?

Table of Contents

Share at:

If you own or run a business, checking your workers fit the mold and are up to the task is key. If it is your first time employing
somebody, it can be difficult. Whilst it is prudent to gauge whether
employees are suited to a role, you must still abide by all fair work
laws in doing so. Accordingly, one of those considerations is the length
of the employee’s probation period.

During the probation period, an employer can end an employee’s employment for any reason without any unfair dismissal issues arising. An employer with less than 15 employees is subject to granting a minimum employment period of 12 months. However, an employer with more than 15 employees must employ people for a minimum of 6 months. As such, there is no point extending an employee’s probation period beyond either 12 or 6 months respectively. The Fair Work Act 2009 (Cth) governs these requirements. However, the actual employment agreement will dictate the employee’s probation period within that 6 to 12 months.

It is common for probation periods to run anywhere from 3 to 6 months – but they can be less.

Employment Agreement

Firstly, the employment agreement sets
the probation terms. Therefore, it is sensible to make sure that this
fulfils any legal obligations under fair work laws. The Award type
shapes the agreement. If no written employment agreement exists, the
employee’s employment will not be subject to a probationary period. When
preparing this agreement, you must consider any further laws that apply. A contract lawyer can help in this stage.

Employee Entitlements on Probation

Certain laws create entitlements for workers. These can include:

  • Access to their paid leave such as annual leave and sick leave
  • Receipt of notice when employment ends
  • Paying unused leave hours

What Happens At the End of the Probation Period

Whether
successful or not, there are guidelines to abide by at the end of the
employee’s probation period. The following situations may occur:

  • The employee performance is been good, and are confirmed as a permanent employee. At this point, it is best practice to issue a successful probation completion letter. The contractual arrangement you formed with the employee will continue to take effect.
  • The employer terminates employment because the performance is not good. An unsuccessful probation letter may be issued and notice of termination will be given.
  • Alternatively, the employee may exhibit potential and the probation period can be extended. This possibility must be agreed upon and included in the initial employment agreement and must also abide by the fair work laws, keeping within the 6 to 12 month thresholds.

Overall, each agreement can vary, but the above steps are vital throughout the
probation process. The Australian Government Fair Work Ombudsman website contains more guidelines. If you are unsure about any of these laws, it always wise to seek the help of an employment lawyer.

Find the perfect lawyer to help your business today!

Get a fixed-fee quote from Australia's largest lawyer marketplace.

Share at:

Simplify creating legal documents today

Browse through Lawpath's AI tools which can be used to draft, review and refine legal documents today!

Related Articles

A Guide to NES: The 11 Employment Entitlements

Understanding an employers obligations under NES is extremely important. Read on for more about NES: The 11 Employment Entitlements.

What’s the Difference Between Redundancy and Severance Pay?

Upon termination employees are often entitled to different forms of compensation. Here we discuss two of them - redundancy and severance pay.

Contractor Versus Subcontractor: What’s the Difference? (2026 Update)

As a business owner, it's likely you'll have to hire a contractor and subcontractor at some point. Read this guide to find out what they are.

Garden Leave: Advantages and Disadvantages

Wondering if you should have a garden leave clause in your employment contract? Check out the advantages and disadvantages of garden leave.

What is Long Service Leave in Western Australia?

Long Service Leave in Western Australia may have different requirements to other Australian jurisdictions.

What Is Long Service Leave in New South Wales?

Long service leave entitlements vary depending on which state you work in. Learn more about entitlements to long service leave (NSW) here.