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Termination During Probation

Termination During Probation

When terminating an employee during their minimum employment period (in which an employee will be ineligible to claim unfair dismissal), as an employer, you are not legally obliged to provide the employee with an explanation or the reason/s for their dismissal.

However, it is important to note that failure to do so could prompt the employee to try to seek an alternative remedy for their dismissal, particularly where they may feel that there is an unfair or dishonest reason for their employment having been terminated.

Under the Fair Work Act 2009, an employee would not be eligible to claim unfair dismissal where they have not the minimum employment period.

The minimum employment period is:

  • 6 months for employers with 15 or more employees
  • 12 months for employers with less than 14 or less employees

However, irrespective of their length of service, an employee would be eligible to lodge a general protections (or adverse action) claim under the Fair Work Act 2009 should they believe that they were terminated for having and/or exercising a workplace right (such as the taking of leave to which they had an entitlement, having made a complaint), or for a discriminatory reason.

In practice, a general protections claim can present a much greater problem for an employer than an unfair dismissal claim, as:

  • there is no minimum period of employment required to be served to lodge such a claim,
  • there is a reverse onus of proof which means that the employer is effectively guilty until proven otherwise,
  • a broader range of remedies can be sought by the employee, and
  • unlike unfair dismissal claims, damages are uncapped.

An employee who has not yet completed the minimum employment period could also potentially seek remedies for discrimination under the relevant federal, state or territory equal opportunity legislation, or for breach of contract under common law.

Given this, it is important to ensure that:

  • any decision to terminate an employee during the minimum employment period be based on objective criteria, not a discriminatory or protected reason.
  • due process is followed prior to an employee’s employment being terminated,
  • you always retain any documentation which supports an employee’s pattern of poor performance, including discussions held, to support the decision to terminate (should the employee seek to take alternative action).

While you are not obliged to provide an employee with the reason for their dismissal during the minimum employment period, doing so can help to demonstrate that decision to terminate was based on a valid reason, which in turn can work to reduce the likelihood of the employee seeking alternative remedies.

Prior to terminating the employment of an employee, it is recommended that you contact us on 1300 720 004 or via email at [email protected] to discuss the process that is to be followed so as to minimise any potential risks.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.

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