"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.
