Starting a new job usually means starting on probation, and yet it can be one of the most misunderstood parts of Australian employment law. Many employees assume probation means reduced pay or fewer rights. Some employers assume it gives them a free pass to dismiss someone without consequence. Neither assumption is accurate and understanding the rules can minimise potential disputes between employers and employees.
What is a Probation Period?
A probation period is a trial period at the start of full-time or part-time employment, typically three to six months, during which an employer assesses whether a new employee is suited to the role. Probation is not a concept created by legislation, but a contractual arrangement, usually set out in the employment contract or letter of offer. The length of the probation period is typically decided by the employer.
The Concept Often Confused with Probation
While the employment contract specifies the terms of the probation period such as how it works, how long it is for, and what happens if an employee “fails” it, the Fair Work Act 2009 (Cth) regulates the minimum employment period. This is the length of service an employee must complete before they can bring an unfair dismissal claim to the Fair Work Commission. Under section 383 of the Act, the minimum employment period is:
- Six months of continuous service for employees of larger businesses, or
- Twelve months for employees of a small business employer, defined under section 23 as one with fewer than 15 employees.
This is a separate concept from a contractual probation period, even though the two often overlap in practice. An employment contract might specify a three-month probation period, while the statutory minimum employment period for unfair dismissal purposes remains as six or twelve months regardless of what the contract says. Importantly, extending a contractual probation period does not extend the statutory minimum employment period – the two run independently.
While casual employees do not generally have a recognised probation period, service can still count towards the minimum employment period if the employment was regular and systematic and there was a reasonable expectation of continuing work, in line with section 384 of the Act.
Employee Entitlements During Probation
Probation does not reduce an employee’s workplace rights. From the first day of employment, whether or not a probation period applies, employees are entitled to the full range of National Employment Standards (NES) protections, including:
- Payment at the correct minimum wage or applicable award/enterprise agreement rate – there is no lawful “probationary rate” of pay
- The superannuation guarantee rate (12% from 1 July 2025)
- Accrual of annual leave and personal/carer’s leave for full-time and part-time employees
- Protection from unlawful discrimination and sexual harassment
- A safe workplace under work health and safety laws
- Notice of termination, calculated in the same way as for any other employee
Casual employees do not accrue paid annual or personal/carer’s leave but may be entitled to a casual loading under an award or agreement.
Termination During Probation
Generally, employers can end employment during the probation period more seamlessly than after the minimum employment period has passed because an employee who has not reached that milestone cannot bring an unfair dismissal claim. However, “more seamlessly” does not mean “without obligations”. Employers must still:
- Provide the written notice period required under section 117 of the Fair Work Act (or pay in lieu of notice). For employees with less than 12 months of continuous service, the minimum notice is 1 week. Casual employees are not entitled to notice of termination under the NES.
- Pay out any accrued but untaken annual leave (personal/carer’s leave is not paid out on termination under the NES, unless an award, agreement, or contract states otherwise).
- Avoid dismissing an employee for a discriminatory reason, such as age, sex, race, disability, or pregnancy.
- Avoid dismissing an employee for exercising a workplace right, such as taking sick leave or raising a workplace complaint.
The last points are critical. Even where an unfair dismissal claim is not available, an employee may still be able to bring a general protections claim under Part 3-1 of the Fair Work Act if the dismissal relates to a prohibited reason. Unlike unfair dismissal, there is no minimum employment period required to access general protections – it applies from day one.
The Difference Between Unfair Dismissal and General Protections Claims
While unfair dismissal claims concern whether a dismissal was harsh, unjust, or unreasonable, general protections focus on the protection of certain employee rights. Section 340 of the Fair Work Act protects employees from certain adverse actions which, under section 342, includes demoting, disadvantaging or terminating an employee because they have exercised, or propose to exercise a workplace right (such as taking leave, querying pay, or making a complaint).
There is no statutory cap on the compensation that can be awarded for general protections claims.
Discrimination complaints can also be lodged with the Australian Human Rights Commission or an equivalent state or territory body, regardless of how long someone has been employed.
Extending a Probation Period
Extending probation may sometimes be appropriate – for example, if an employee has been on extended leave and has not had a fair opportunity to be properly assessed. However, an employer generally cannot extend a probation period unilaterally. It should be discussed with the employee, agreed to, and confirmed in writing, ideally with reasons given and a new end date specified. Remember, extending a contractual probation period has no effect on the statutory minimum employment period, which continues to run based on the employee’s length of service alone.
Practical Takeaways
For employees, the key point is this: probation can limit your ability to bring an unfair dismissal claim, but it does not strip you of your pay, leave, superannuation, or protection from discrimination and unlawful termination. If you believe you were dismissed for taking sick leave, making a complaint, or another protected reason, it is worth seeking advice promptly, as general protections claims are subject to strict time limits.
For employers, the key point is that probation is a useful HR tool, not a legal shield. A fair, documented process with clear expectations, honest feedback, and a legitimate reason for any termination, remains the best protection against a costly dispute, even during the early months of employment.
Final Word
Probation periods are a normal and lawful part of Australian working life, but the rules around them are more nuanced than they first appear. Because outcomes can depend heavily on the specific facts – length of service, the size of the employer, the reason for termination, and what the contract says, anyone facing a dismissal during probation, or considering how to structure one, should seek tailored legal advice rather than relying on general information alone.
This article provides general information only and does not constitute legal advice. It should not be relied upon as a substitute for advice from a qualified employment lawyer regarding your specific circumstances.
If you or someone you know wants more information or needs help or advice, please call (02) 5127 5261 or email [email protected].