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Probation Periods

I have recently read an interesting article on Probation periods. I was long thought that they were a set period, but this is not true.

There are no set rules for the period that a probation period may apply, however, many employers set the probation period at six months as this generally allows both parties sufficient time to assess each other and decide on whether the relationship should continue.

During this time either party may terminate the employment relationship with minimal or no notice depending on the conditions of the employment contact, agreement or Modern Award.

Six months continuous service is also the minimum trigger point for access to unfair dismissal provisions of the Fair Work Act 2009 (12 months service for businesses with less than 15 employees).

The article went on the further discuss induction process and the relevance in ensuring that the staff member know what is expected during their probationary period along with a relevant job description and copies of relevant workplace policies, procedures and manuals.

With Critical Steps in the process:

Inform the new employee that they are on probation and that their performance will be closely monitored and assessed.

It should be made clear to the new employee that:

  • If they have any queries/problems associated with performing their role what process to follow to gain assistance and/or training.

 

  • Regular performance feedback sessions will be held to assess the new employee and allow them to raise any concerns that they may have regarding their duties.

 

  • Specific time periods should be set for these feedback sessions and agreed and confirmed by both parties e.g. weekly, monthly or three monthly.

 

  • The employee should be informed that if their performance falls below the required level during the probation period they will be given every opportunity to improve to the required level but if they are unable to meet the expectations of the employer that they may be terminated.

 

  • Before the end of the probation period a formal interview should be held between the new employee and the employer where their performance over the probation period is discussed and if the performance is below the required standard they may have their employment terminated.

 

Although there is no access to the unfair dismissal protections of the Fair Work Act 2009 if the termination takes place within the minimum service period, other provisions of the FWA may apply such as Section 342 General Protections or Adverse Action, breach of contract or discrimination.

These provisions or actions generally are applied where the termination is not handled properly and the employee is not provided with feedback on their performance during the probation period where any deficiencies are clearly defined, and opportunity given for the employee to rectify the areas of concern or where the termination was based on a discriminatory basis such as absence from work due to a temporary illness or injury.

Extending a probation period

The Fair Work Act does not prescribe a probation period in relation to unfair dismissal laws, it refers to a minimum employment period of six months for employers with 15 employees or more and 12 months for 15 employees or less.

If the probation period extends beyond the minimum employment period and the employer terminates the employee, the employee would have access to the unfair dismissal laws.

Therefore, fixing the probation period to a time within the minimum service requirements is the most common option chosen by employers.

(BO2, 2018)

 

References

BO2, C. (2018). Probations Period Article No.43. Essentials, Leigh’s Corner.

 

 

 

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NEW EMPLOYEE PROBATION PERIOD

When a new employee commences work, there are a number of things that must be put in place to ensure that the new relationship gets off to the right start and continues in a positive manner.

The first step before any employee commences their role is that they should go through a comprehensive induction process which includes:

•         Information about their new workplace

•         Explanation and access to the workplace policies and procedures

•         Job description and responsibilities

•         WH&S procedures and workplace specific requirements

•         Orientation of work area and amenities

•         Security information

It is also a good idea to assign an existing employee or supervisor as the new employee’s mentor for the first six months.

The letter of offer or contract of employment should clearly define if there is a probation period in place and the duration of this probation period.

Access to the Unfair Dismissal Protections of the Fair Work Act 2009 for employees only applies when the minimum service requirements of 6 months’ service for a business with more than 15 employees or 12 months for a business with less than 15 employees are met.

You may require a shorter or longer probationary period but the requirements of the Fair Work Act 2009 do not change. Many employers therefore set their probation periods at 3 to 6 months with the majority of employers choosing the 6-month period.

The probation period is when the employer is able to assess the suitability of the new employee and how they fit into the workplace and perform the role they were employed to perform.

During the probation period either party may terminate the employment relationship with or without notice (usually a week’s pay in lieu of notice) depending upon the stipulations contained in the employment contract or applicable award.

There are some important actions to take during this probation period to give the employee the best possible chance of success and to defend the employer’s position against potential claims if the position is terminated.

These actions include:

1.       Clearly define the role, responsibilities, and expectations of the role

2.       Meet with the employee on frequent occasions to discuss their progress and how they are performing in their role

3.       Provide meaningful and challenging work within the scope of the role of the new employee to ensure that you can properly assess their competence and behaviour

4.       Advise the employee of any specific areas where their performance or behaviour is below the required standard and provide advice, assistance and support to help them reach the required standard

5.       Advise the employee that if they fail to meet the required standard that their employment may be terminated at the end of their probation period or before in accordance with their contract of employment or award

6.       Give feedback on the employee’s attempts to improve

7.       Do not make promises to the employee that their work will continue after the expiry date of the probationary period as this is an assessment period

8.       Before the expiry of the probationary period make a clear decision on whether to keep the employee or terminate their employment

9.       If the decision is to terminate the employee it should be done before the probation period expires otherwise the degree of difficulty in managing and defending the termination increases significantly

The probation period is the opportunity for both parties to assess their suitability to work together in a workplace and specifically for the employer to assess the suitability of the employee in their role.

It is important for the employer to closely monitor the new employee during their probation period to ensure that any decision made is based on solid grounds.

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