“Probation periods” under the Fair Work Act: What are they?

“Probation periods” under the Fair Work Act: What are they?

By Shane Robson

There is a common misconception that probation periods can only be set by employers in employment agreements and that this action will determine the employer’s right to dismiss an employee.

If your job is covered by the Fair Work Act 2009 (Cth) this is incorrect.

It is important to understand that the Fair Work Act overrides any employment agreement.  Having said that however, it does automatically include what some people would consider to be “probation periods” for employees.

The Fair Work Act creates minimum requirements that must be satisfied before an unfair dismissal action can be brought against an employer. These include the requirement that employees be employed for a period of 12 months (for businesses that employ less than 15 employees) and six months (for businesses that employ 15 or more employees).

Whilst these minimum requirements mean that an employee cannot bring an unfair dismissal action against an employer if their employment agreement is terminated, the employee can bring an action if there is unlawful termination (which would include a decision based on an employee’s race, sex, religion, pregnancy etc).

It should also be noted that in situations where employment contracts have been signed, the terms of the individual contract and their impact on the relationship between the two parties would also need to be fully appreciated before any actions could be taken.

For more information on employment agreements or your rights and obligations under the Fair Work Act, contact Shane Robson at Kenny Spring Solicitors on ph: 02 6331 2911 or email [email protected] .

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