Australia: Probationary problems: Dismissing an employee on their probation period

Last Updated: 8 November 2019
Article by Renae Harg and Lauren Wright

Can you terminate an employee during their probation period?

Some employers proceed under the misapprehension that they can terminate an employee on probation without providing any reason for the dismissal, with the employee unable to pursue any legal claim against them. The recent decision of Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd (No. 2) [2019] FCCA 1295 has shown this is incorrect.

What is a probation period?

A probation period is a set period of time at the beginning of an employee's employment for an employee and employer to assess whether the employee is suited to working in the role and in the business. A probation period can vary but is usually for three to six months depending on the role and the business.


Under the Federal system, the Fair Work Act 2009 (Cth) provides that an employee must be employed for a minimum of six months, or 12 months if the employer is a small business with fewer than 15 employees to make an unfair dismissal claim.

An employee who is on a probation period is not likely to have worked the minimum period to qualify to make an unfair dismissal claim. Employers should keep this in mind when considering extending an employee's probation period. If the employer extends the probation period past six months if not a small business employer or 12 months if a small business employer, the employee will likely be eligible to make an unfair dismissal claim.

In the State system, the Industrial Relations Act 1979 (WA) does not provide that an employee must be employed for a certain period of time before being eligible to make an unfair dismissal claim. However, the Western Australian Industrial Relations Commission (WAIRC) must have regard to whether the employee was on an agreed probation period at the time of dismissal in determining whether the dismissal was harsh, oppressive or unfair.


Despite the fact that an employee may not be eligible to make an unfair dismissal claim in the Fair Work Commission, there is another type of dismissal-based claim, a general protections claim, which does not require the same minimum period of employment. An employee who has worked less than six months may be able to make a general protections claim alleging that the employer took adverse action against them, by terminating their employment, because of a prohibited reason. Prohibited reasons include an employee's sex; race; age; pregnancy; exercising of a workplace right to make a complaint or inquiry; and or engaging in industrial activity.

In Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd (No. 2) [2019] FCCA 1295, the employer was ordered to pay the former supervisor (who was five months into her probation period) a sum of $20,000 compensation for terminating her employment after she made a number of complaints about her employment, including that she had been bullied and was performing tasks outside her job description. In the substantive decision, Judge Manousaridis found that the employer had failed to provide a reason for termination in the meeting or termination letter, and had informed the employee that they were not required to give a reason for termination.

General protections claims have a reverse onus of proof. This meant that once the employee had made the general protections claim, the employer was required to show that they did not terminate her employment for a prohibited reason. The employer argued the employee was terminated because 'she was not the right fit for the business'.

However, the Federal Circuit Court found that the employer had not discharged the onus and the failure to provide a reason for termination left it open for the employee to allege that the reason was prohibited or unlawful.

This case is a useful reminder of the need for employers to provide the reasons for termination, even for an employee on a probation period.

In addition to general protections claims, an employee terminated during their probation period may also be able to make a discrimination claim to the Equal Opportunity Commission or the Australia Human Rights Commission. These claims do not have a minimum period of employment as part of their eligibility criteria.


Employers should have a process for managing employees on a probation period.

As a first step, the employer should be clear when the probationary period is to end, for example by including the length of the probationary period in the employee's employment contract.

The employer should regularly assess the employee's performance throughout the probationary period. If the employee is not performing as expected, the employer should meet with the employee to set out any performance issues and to implement a performance improvement plan.

If the employer determines that the employee's performance has not improved or they are not suitable to continue in the business, the employer should meet with the employee prior to the expiration of the probation period to:

  • inform the employee that they have been unsuccessful in their probation period and that their employment will be ending;
  • provide in clear, unequivocal terms the specific reason(s) for termination;
  • inform the employee that they will be paid any outstanding salary/wages, paid any accrued but untaken annual leave, and provided with the minimum notice period or payment in lieu;
  • hand the employee a letter of termination, which sets out the above details.

By seeking specialist advice from MDC Legal, you will be able to better manage and mitigate the risks associated with employees on probation periods.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions