There are always a number of issues needing to be considered before terminating an employee. However, does the fact that they are still within their probationary period of employment mean that termination is easier?
What is a probationary period?
A “probationary period” is a term or condition that is created by a written employment agreement, that allows an employer a certain period of time to assess the employee’s suitability to the role. In setting a “probationary period”, an employer is therefore afforded the right to dismiss the employee with one weeks’ notice or payment in lieu of that notice.
If the employment contract does not contain a clause setting out this “probationary period”, then the employer is not afforded the use of that “trial period” to ascertain suitability. That said, the law has been drafted in such a way that, more often than not, there is very little a probationary employee can do when they are terminated.
Can I simply terminate a probationary employee if I don’t like them?
Common employment law principles have always stated that you must always have a valid reason for the dismissal of an employee, and when doing so, care must be taken. However, Australian employment law is such that there is room for employers to dismiss an employee with no real reason at all.
The ability to do this has been made easier by legislation which states that an employee cannot bring an unfair dismissal claim against an employer where they have been employed for less than:
- Twelve months – if the employer employs less than fifteen employees; or
- Six (6) months – if the employer employs more than fifteen employees.
As a result of this, if the employee is terminated without a valid reason and if they are terminated within the relevant time period, there is limited action that the employee can take against the employer.
Is it really that simple?
Yes, so long as other considerations are taking into account. The above provisions only relate to unfair dismissal. Regardless of whether there is a specific clause in the contract allowing for a probationary period, there are a few other issues that could pop up:
- They may bring action against the employer for matters such as an underpayment of wages or failure to provide payment in lieu of notice. Therefore, an employer must always ensure that they abide by the laws relating to these entitlements during the probationary period and upon termination; and
- They still may have an ability to bring action against the employer under the “general protections” provisions of the Fair Work Act 2009 (Cth). In this regard, an employer must be careful not to let matters such as sex, race, religion, pregnancy, disability, or family responsibilities influence a decision to terminate. Further, an employer should seek further legal advice if other factors exist, such as attempts by the employee to exercise workplace rights (like worker’s compensation or trade union membership), or have made a complaint in the workplace during their period of employment.
Should an employer seek legal advice prior to terminating a probationary employee?
When in doubt, I recommend that you should always seek legal advice prior to terminating any employee. However, once you have checked to ensure that the “general protections” provisions do not apply, and that the employee’s correct entitlements during the employment and upon termination have been paid, then the employer can rest easy.
If you have any questions regarding this topic, contact me at Hallett Law.