I have spoken to a few members in the past who seemed to be unclear about probationary periods and the rules around them. Below is information for members that will hopefully clarify this.

What is a probationary period?

It is a set period of time specified in a full-time or part-time employee’s contract where the employer can assess and check an employee’s suitability for the role.

How long should they be?

There is nothing specifically legislated on probationary periods and how long they should be for but typically, they are between 3-6 months which commences from when employment starts.

It is certainly recommended however that they do not go for more than 6 months. The reasoning for this is firstly 6 months should be a sufficient period to assess someone’s suitability for a position.

More importantly however is the fact that an employee is eligible to make an unfair dismissal claim where they have completed a minimum of 6 months employment unless they are employed at a small business. A small business is one with less than 15 employees including regular casuals in this count but not irregular casuals, and their employees have to be employed for at least 12 months to make a claim instead.

Whilst separate, if a probation period is made for long enough that someone terminated during it could make an unfair dismissal claim, this will defeat the purpose of having the probation period. Essentially even if you could say they were terminated “in probation”, if a claim can be and is made this won’t really be relevant and it will have to be shown it was not harsh or unfair, the process followed was procedurally fair etc.

What are an employee’s entitlements in a probationary period?

Employees are entitled to the same entitlements as those not in probationary periods.

Can we terminate someone for any reason during probation?

Not for any reason as people in probation are still covered by certain protections under legislation, and they can’t be dismissed due to a “prohibited reason”.

A prohibited reason includes dismissing someone due to a discriminatory reason such as their age, disability, gender, sexual orientation etc. It is also where they have been dismissed due to exercising a workplace right such as taking part in protected industrial action, enquiring about their entitlements, due to taking valid sick leave etc.

As mentioned prior regarding their length, a club should also be aware that if they terminate in “probation”, but they have been employed long enough to make an unfair dismissal claim there are definitely risks. In this instance the process is of greater importance and the club should be able to show not only a valid reason for dismissal but that it also afforded the person procedural fairness e.g. they were given an opportunity to respond to the issue, enough time to improve (if performance related), proper notice of any meetings etc.

Where an employee can make an unfair dismissal claim it is recommended they contact Clubs SA for advice before dismissing.

Should casual employees have a probationary period?

No, a casual employee should not have a probationary period in their contract.

The definition of casual employment in the Fair Work Act 2009 (Cth) is characterised by having no firm advance commitment to ongoing work and generally a true casual employee is offered shifts on an as needs basis. This means the characterisation of casual employment is at odds with the purpose of a probationary period and so they should not have these and if anything, its inclusion may indicate more of a permanent employment relationship.

It is important to note as well that all the above does not mean you can just terminate a casual whenever you wish and for whatever reason. Casual employees are also protected from dismissal due to prohibited reasons and those deemed to be regular and systematic are entitled to make unfair dismissal claims where they have been employed for the required period discussed earlier.

Does someone dismissed during probation receive notice?

Yes, if a permanent employee is dismissed during probation they still receive notice.

The Fair Work Act 2009 (Cth) in section 117 sets out the minimum period of notice required to an employee who has been terminated (not applicable to casuals) and for someone engaged less than a year it is 1 week. Clubs should however check that the employees’ contract or something like an EBA (if applicable) does not impose a longer period of notice.

Can you extend probationary periods?

For it to be possible for a probationary period to be extended legally, firstly there would have to be agreement between employee and employer and/or a clear term in the employee’s contract allowing this. It would also be important to generally show it is reasonable to do so in some way.

Even if it could arguably be done, it is not worth doing if extending it brought it to a point that the employee could make an unfair dismissal claim under the Fair Work Act 2009 (Cth) for the reasons mentioned earlier.