Termination during a probation period – a cautionary tale
A recent Court decision around a probationary period has led to discussions on what is the best approach when dealing with a termination of employment in or near the end of a probation period.
In the matter we are referencing, an employee was dismissed just before their probation ended. Consequently, the employee sought to be reinstated, citing a breach of the general protection provisions of the Fair Work Act. In short, the dismissed employee claimed their employment was terminated at the time to remove the possibility of any unfair dismissal claim (which, in this situation could have been sought if the employee had passed the six-month qualifying period).
The court heard the employee established an initial case and that the timing of their dismissal had been influenced by the employer ensuring the employee could not make a claim for unfair dismissal, rather than any specific reason(s). So, whilst they wait for a full case to be heard, the Court made an interim order for the reinstatement of the employee and an order for the employer be restrained from terminating his employment.
Whilst this matter is yet to be formally concluded, we recommend businesses do the following to ensure a general protections claim is not raised if termination occurs during a probationary period:
Ensure your letter of employment is clear about what is expected in the probation period from a performance and behaviour perspective. If these standards are not met and termination occurs near the end of a probationary period, an employer would then be able to clearly demonstrate that the employee failed to meet those standards and therefore a termination was justified.
Employers should have regular discussions with the employee before then end of the probation period to discuss and document any concerns around performance and behaviour. Keeping regular notes of these meetings is also recommended to ensure a thorough audit trail.