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.
