The Fair Work Act introduced statutory probation periods whereby an employee whose employment was terminated within that period could not make a claim for unfair dismissal. These probation periods were 6 months for a large business (15 or more employees) and 12 months for a small business (fewer than 15 employees). 

Of course, termination during these probation periods is not without dangers: employees have can bring general protections claims if dismissed for a prohibited reason, no matter how long they have been employed. 

Following the decision in Qantas Airways Limited v Transport Workers Union of Australia (2023) where the High Court found that Qantas terminated a number of employees to prevent them from exercising a workplace right, the question as to whether the termination of employment of an employee on the last day of their probation period has been looked at in the Federal Court. This was only an interlocutory order, which means the matter has yet to be decided in full.

The employee in question was under investigation for various misconduct matters and was terminated the night of the last day of his probation period, and before the investigation had been completed. The Court found that the reasons for the termination were to avoid the employee making an unfair dismissal claim if he had been terminated the following day. The matter will be heard in full at a later date.

It is thus important to make sure that your contracts of employment provide clarity about the probation period, setting out that the employment beyond any probation period will be dependent upon the employee meeting the required standards of performance and conduct.

Primary Employers Tasmania can assist with all your contract needs to ensure as an employer you have the protections needed.