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Can I be sacked on probation? – Employee Rights/ Labour Relations



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“Can I be legally sacked on probation? I thought I’d
have to be caught stealing from the office, dodging work or really
stuffing up an assignment, but no, I was fired for no reason at
all. Is that legal?”

Is it legal to be sacked on probation?

The short answer is yes – you can be sacked on probation. Under
the law, every new employee is “on probation” for a
period of time. The term “probation” does not exist in
the Fair Work Act. However, there is a “statutory
minimum employment period” based on the size of the
employer’s workforce.

Many employers use these terms interchangeably. These periods
are used to give both parties the opportunity to check the
compatibility of the applicant and the role. Generally, an employee
is prevented from applying for unfair dismissal during the
statutory minimum employment period.

Do I have any legal rights while on probation?

It is important for anyone in this situation to know they do
have some rights under the general protection provisions of the
Fair Work Act.

For instance, if you have taken some sick leave while on
probation, you cannot be terminated for that reason. You also
can’t be sacked for becoming pregnant while on probation.

If the employer doesn’t mention sick days or pregnancy when
they inform you of your dismissal, they are still required to
provide a valid reason for the dismissal.

Legal obligations if sacked on probation

Employers have to follow the correct procedure if they wish to
dismiss an employee who is on probation. An employer can terminate
for reasons other than a protected reason, during the probationary
period, but they must explain themselves, and give a valid
reason.

Employers must pay full wages and entitlements for the entire
period of employment. They must also give one week’s notice, or
payment in lieu.

Why can’t I claim unfair dismissal if I’m sacked on
probation?

Under the Fair Work Act, an employee, whether on a
formal probation period or not, can’t bring an unfair dismissal
claim against their employer unless they have been employed for
more than six months and the employer has more than 15
employees.

This period increases to one year for a small business employer
– one which employs fewer than 15 staff.

The Fair Work Ombudsman website contains information and advice on probation
periods
.

What if I have been sacked unfairly?

If the dismissed probationary employee thinks they have been
treated unfairly, it is worth getting legal advice, as there may be
other avenues to pursue.

For instance, a teacher who was on the six-month probation
period of a permanent contract was dismissed on the last day of
their first term. The teacher sought legal advice and the school
was obliged to pay the teacher’s wages for the three-week
school holiday and one week of the following term as notice.

There are protections if it can be established the employee was
sacked on discriminatory grounds, such as gender, race, age,
religion, disability or family responsibilities.

These protections also apply to an employee on probation who
makes a complaint about work conditions, makes a claim for award
rates or lodges a claim for workers compensation.

There could also be a case if the employee was a victim of lies
or misrepresentation spread by someone in or outside the
company.

Nick Burton

Employment law

Stacks Collins Thompson

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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