Think You Can Dismiss Someone During Probation Without Risk Think Again

Introduction

Many employers believe that if someone is still on probation, they can be dismissed at any time, for any reason, with zero risk.

This is one of the most common and most dangerous misunderstandings in employment law.

While probation periods are useful from an HR perspective, they do not override your legal obligations under the Fair Work Act 2009 Cth. If you get it wrong, you could face serious legal consequences even if the employee has not passed probation.

Lets Debunk the Myth What Is a Probation Period Legally

The term probation period is not defined in Australian employment legislation. It is an HR term, not a legal one. What matters under the law is whether the employee has served the minimum employment period, not whether they are on probation.

Here is the legal test for protection from unfair dismissal

6 months for businesses with 15 or more employees
12 months for small businesses with fewer than 15 employees

If an employee has not yet served the minimum employment period, they generally cannot bring an unfair dismissal claim regardless of whether a probation period was written into their contract.

But that does not mean you are in the clear. Employers still need to tread carefully.

You Can Still Face Legal Risk During Probation

Here are the key legal risks that still apply during a probation period and why relying on the term can create a false sense of security

1. General Protections Claims

Employees even in the first few weeks are protected under the general protections provisions of the Fair Work Act. These prevent dismissal for reasons such as

Making a workplace complaint
Taking sick or parental leave
Exercising a workplace right
Discrimination based on race, gender, disability, pregnancy, or religion

Unlike unfair dismissal claims, there is no minimum service requirement for general protections claims, and the burden is on the employer to prove the dismissal was lawful.

2. Breach of Contract or Award Terms

Even during probation, you must comply with the employees contract, any applicable Modern Award, and the National Employment Standards NES. If the contract includes a notice period or outlines how performance will be reviewed during probation, you must follow it or risk a breach of contract claim.

3. Poor Documentation and Process

If you dismiss an employee without clear reasons or without documenting concerns during their probation, it may appear arbitrary or unfair and increase the risk of claims or reputational damage. It also undermines your ability to justify the decision if challenged under general protections.

Does the Employee Still Need to Be Given Notice

Yes. Even during probation, the employee is entitled to notice of termination or payment in lieu, as per the NES or their award or contract.

In most cases, this will be at least one weeks notice, but it could be more depending on the employees classification or agreement.

When Is Probation Still Useful

Despite its lack of legal weight, probation periods are still practically useful for

Setting expectations at the start of employment
Structuring performance reviews
Creating a framework for feedback and improvement
Confirming whether the employee is a long term fit

The key is to treat probation as a management tool, not a legal loophole.

Tips for Employers Managing Probation Periods Properly

Include a clearly worded probation clause in the employment contract
Specify how performance will be assessed and how the period can be extended
Provide regular feedback and give the employee an opportunity to improve
Document all concerns and communications
Do not assume you can terminate without cause assess legal risks before acting
Get legal advice if you are unsure, especially if the situation is sensitive

Conclusion Dont Let the Word Probation Fool You

The word probation might sound like a legal buffer, but it is not. It is simply an HR term. Whether or not an employee is still on probation, employers must comply with the Fair Work Act, relevant awards, contracts, and workplace rights.

Dismissing someone without understanding the risks, even early on, can result in costly claims, stress, and damage to your reputation.

Need Help Managing Probation or Performance Concerns

We assist employers with drafting contracts, navigating performance issues, and managing dismissals lawfully during and beyond probation. If you are unsure about your legal obligations or want to reduce risk, we are here to help.