Dismissing an employee who hasn’t worked out in the first 6 months – what are your rights and ensuing risks for the business?

Probationary period

Under the Fair Work Act (Cth) 2009 (the Act) an employee is not allowed to make an unfair dismissal application against an employer unless they’ve been employed for 6 months (by an employer with more than 15 employees) or 12 months (by an employer with less than 15 employees).

If you fit the small business definition (of less than 15 employees) you should refer to the Small Business Dismissal Guide (which you can download here) before terminating an employee’s employment – it includes a step-by-step checklist to guide you through the process.

But what does all this have to do with a probation period? Well, many businesses set their probation periods in line with the 6 month unfair dismissal minimum employment period. Some businesses also put in their contracts the ability to put an employee on a further probationary period if they’re still not sure after the initial period if the employee is the right fit. But regardless of the probation period in your contract, if you sack someone within their probation period, they cannot then claim unfair dismissal unless they have been employed for the minimum employment periods as set out above (6 or 12 months depending on the size of your business).

The risks with sacking an employee

However, this doesn’t mean that you can sack someone risk-free. Even if they are prevented from going down the unfair dismissal path, they could choose to pursue a general protections claim (you can read more about this type of claim here) usually claiming some kind of discrimination. Alternatively, they could go to the Human Rights Commission and make a discrimination complaint there. Therefore, we strongly recommend that before you sack someone, you give us a call to talk about the risks and ways in which you can minimise your liability before you embark down this path. We are here to help!

How we can help your business

We can help your business by:

  • Representing you to defend an unfair dismissal, general protections or breach of contract claim
  • Drafting or reviewing contracts of employment and termination of employment letters
  • Implementing disciplinary procedures in your workplace
  • Updating your policies and procedures dealing with under performance and ramifications for failing to comply with your policies and procedures
  • Training for your management or HR team on how to deal with under performance and performance management processes in order to minimise the risk of a claim in your business

Call us today to discuss your workplace needs on 03 9111 5660 or book a free 15-min chat here to talk with one of our solicitors.

This is general advice only. Liability limited by a scheme approved under Professional Standards Legislation. 

Published Jan 22, 2018

Clifton Hill Jessica Kerr Sinclair + May jessica@sinclairmay.com.au

Jessica Kerr is the Director of Sinclair + May, a female-led, boutique commercial law firm based in Melbourne’s inner north.  Sinclair + May work with small businesses to ensure their legals are in order.

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