Starting a new role can bring both excitement and uncertainty, and many employers start a new employee on a probation period. This trial period at the start of employment provides a period of employment that allows the employer to assess the employee’s suitability for the role, including their skills and performance or conduct. For the employee, the probationary period offers a chance to determine if the position is a good fit. If they decide not to continue employment during this initial period, they can end their employment with a few essential rules and policies in mind to follow within the organisation.

What is a probation period? 

Some employers may choose to hire an employee on the preface of a probation period, in which they assess the suitability of the employee, and whether they possess the necessary skills and knowledge for the role. Probation periods can be for a fixed period of time (three to six months, or even one year), at the discretion of the employer. Alternatively, an employee may indefinitely be described as “on probation”. If an employee fails to perform at a satisfactory level, the employer may choose to terminate their employment during their probation period. 

Understanding your employment relationship during the probation period

The probation period sets the foundation for an employment relationship by defining mutual expectations. During this period of employment, the employer and employee evaluate if the role is suitable for both. The employer assesses the employee’s performance or conduct through regular performance reviews. Meanwhile, the employee gauges if the role aligns with their career goals and if the work environment meets their needs.

• Employer’s focus: Evaluating skills, cultural fit, and commitment through performance reviews
• Employee’s focus: Assessing role suitability, workplace culture, and job satisfaction

At the end of probation, possible outcomes include passing probation, extending the period, or ending employment if expectations aren’t met. This process establishes a strong employment relationship where both parties feel confident in moving forward.

Fair Work Protections and your rights during the probation period

Under the Fair Work Act 2009, employees have basic protections during the probationary period. While full unfair dismissal protections apply after the minimum employment period of six months, employees are still protected from unfair actions, including adverse action or discrimination.

• Minimum employment period: To bring an unfair dismissal claim, employees must complete six months of employment.
• General protections: Employees can bring a general protections claim if they experience discrimination or other adverse actions.
• Notice and fair process: If the employer decides to end employment, they should follow a procedurally fair process and give written notice where applicable.

Employees with questions about probation rights can contact the Fair Work Ombudsman at 13 13 94 for guidance on protections and fair treatment.

What happens at the end of the probation period?

At the end of the probation period, both employer and employee review job suitability. If the employee has met expectations, the employment status may transition to an ongoing role. If there are concerns, the employer can choose to extend the probation, provide areas for improvement, or terminate the employment contract.

Outcome options:

• Confirm employment: If the employee meets standards, they become a permanent member with full rights and benefits.
• Extend probation: If needed, the length of the probation period can be extended to allow more time for improvement.
• Terminate employment: If the employee is unable to meet role requirements, the employer may decide to end the role, ideally following a procedurally fair process.

This phase marks a critical point in employment, providing clarity on future responsibilities and alignment with the company’s standards.

What employee entitlements are awarded on probation?

During the probation period, employees are entitled to the same rights as other full-time or part-time employees, of which are outlined within the National Employment Standards. As a result, an employee on probation is always entitled to accrue and access their paid leave entitlements, such as annual leave and sick leave. If an employee fails to pass their probation period, they are still entitled to receiving notice when their employment ends, and must have all of their annual leave paid out. 

Can I leave a job during my probation period? 

Remember, a probation period is a trial for both an employee and the company! If the employee feels like the role is not for them, or they were offered alternate employment, it is perfectly acceptable to quit during the probation period. If an employee wishes to do so, they are still required to give their employer notice of resignation, unless stated otherwise in their employment contract. 

If an employee fails to provide notice of their resignation, the relevant modern award that applies to the employer’s organisation entitles them to withhold either up to one weeks wages, or the equivalent amount that the employee would have otherwise earned if they provided notice in the stipulated time period. 

On the other hand, if an employer wishes to terminate an employee's employment within their probation period, they are also required to provide notice of the termination in advance. In some cases, employers may request that the employee leaves the company immediately, and instead offers “payment in lieu of notice” as compensation. 

What is payment in lieu of notice? 

A payment in lieu of notice is a sum of money received when employment is terminated and the employee is to finish immediately. 

There are various reasons as to why an employee may be provided with a payment in lieu of notice, such as: 

• Employees that stay on for the next two to four weeks after being terminated may be detrimental to an organisation, any form or sabotage towards the organisation may occur, e.g., poaching of clients or release of confidential information towards competitors.

• If an employee is not fulfilling a role to an organisation’s satisfaction, a payment in lieu of notice may be given out in order for them to be replaced immediately. 

• If a position has been terminated and there is insufficient work for them to fulfil their specified role, a payment of lieu of notice may be provided (usually occurs with roles being made redundant). 

FAQs on the probationary period and employment rules in Australia

A probationary period serves as a trial phase, giving both the employer and employee the opportunity to assess suitability for a role. During this period of employment, the employer evaluates the employee’s performance based on the requirements and expectations set by the company. Below, we cover what to expect during and at the end of a probation period, along with rights and protections under the Fair Work Act 2009.

What is a probationary period, and how long does it last?
A probationary period is an initial phase at the start of employment, allowing the employer to evaluate the employee’s performance. The length of probation can vary but usually ranges from three to six months in Australia. This period may be extended based on the terms of the employment agreement.

What happens at the end of the probation period?
At the end of the probation period, the employer reviews the employee’s performance to determine if they meet the role’s requirements. If the employee has not met these, the employer may decide to extend the probation, terminate the employment, or confirm the employee’s ongoing status.

Can an employee be dismissed during the probationary period?
Yes, an employee may be dismissed during the probationary period if they fail to meet the job’s standards. Employers typically provide feedback to help employees improve, but unfair dismissal claims generally don’t apply to employees with less than six months of employment.

Does the Fair Work Act offer protection during probation?
The Fair Work Act 2009 provides limited protection during probation. Unfair dismissal laws may not apply if the employee’s period of employment is less than six months, but employees may bring a general protections claim in cases of discrimination or adverse action. For guidance, contact the Fair Work Ombudsman at 13 13 94.

What notice period applies if employment ends during probation?
The notice period is generally outlined in the employment contract and may vary based on the employer's terms. In some cases, employers provide written notice of a specified length, typically weeks’ notice, if they decide to terminate the contract during the probationary period.

Moving forward after the probation period

A well-managed probationary period is crucial for a strong employment relationship. This period allows the employer the opportunity to assess the employee’s performance and determine if they are suited for the role. The length of the probation period can vary, often three or six months, giving time for performance review and setting clear goals. At the end of the probation, an employer may decide to extend, confirm, or terminate the employment contract based on a valid reason. If employment continues, both the employer and employee benefit from a clear path forward.