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Understanding probation periods – 3, 6 or 12 months?

There's an odd kind of uncertainty during the probation period.

You've said farewell to your old job, you've started to settle into your new job and spent an inordinate amount of time trying to make a good impression; but there's a lingering possibility (hopefully unlikely) that your services may not be required – and who knows how much notice you'll get?!

For employers, it can be an equally confusing scenario. Changes under the Fair Work Act 2009 have unsettled the traditional three-month timeframe that many employers would nominate as the probation period (or "minimum employment period" in FWA parlance). In fact, three months is now a pretty meaningless milestone in employment terms.

The minimum employment period is the initial period of employment in which the employer can assess the suitability of their new employee and the new employee can decide if the job is right for them.

Under the Fair Work Act 2009, the minimum employment period is six months from the date of commencement (or twelve months for small business employers, with fewer than fifteen staff). During this period, the new employee cannot make an application for unfair dismissal.

During the minimum employment period, employers must still comply with the required notice periods (in most cases, workers who haven't yet completed the minimum employment period will still be entitled to one week's notice or payment in lieu of notice). Check the legislation for required notice periods and exceptions.

Probationary Period - your questions answered

1. What is a Probationary Period?

The probationary period is the initial period of employment during which an employer can carefully consider whether the new team member is able to meet the standards and expectations of the job and if they should be offered a permanent position. This concept of a "trial period" has long been accepted at common law and in industrial awards.

The relevance of a probationary period is acknowledged in the Fair Work Act 2009. This legislation excludes employees who have not successfully completed a 6 month "minimum employment period" from lodging a claim for unfair dismissal. The minimum employment period for a small business (less than 15 full time equivalent employees) is 12 months.

2. What is the purpose of a Probationary Period?

The probationary period is an important part of the recruitment and selection process of new team members. This period is used for the continuing evaluation and assessment of a team member's suitability to their newly appointed position, and to assess a number of factors including suitability for the job, standards and behaviour and culture fit.

Probation provides an opportunity for the close supervision, monitoring and assessment of a team member's work performance during the initial period of employment. The probationary period provides the first real opportunity to assess a new team member's demonstrated suitability for the job they were selected for, and for their ongoing employment.

A probationary period enables the manager and the new team member to identify relevant strengths and weaknesses in conduct and work performance and to take any necessary remedial action. It also allows the manager to assess how well the new team member is fitting into the role and gives them time to review and adapt training for the new employee.

Monitoring of the team member's performance during the probationary period ensures they are learning the tasks associated with the job correctly, are not picking up any bad habits, and are meeting expectations.

During the probationary period all relevant legislation such as discrimination, harassment, bullying, etc, applies to the employment, so the manager needs to apply all human resources policies to the employment.

3. An on-boarding program

To ensure new team members feel engaged, productive and part of the team from day one, creating the right induction experience whereby the employer aims to prepare and integrate new team members into the organisation's systems, culture and methodologies is advisable.

On a team member's first day a manager may wish to issue a welcome letter and go through induction materials to explain and work through the first week(s) of the team member's new role.

4. Performance Feedback

Throughout the probationary period, the manager should provide the team member with regular feedback on their performance. Feedback can be provided informally or during a formal meeting. When providing feedback whether formally or informally, it is important to address any concerns in a timely manner. So if a team member does something "right" or something "wrong" let them know immediately – do not "save up" any issues for the formal meeting.

Employers may wish to implement a process whereby new team members undertake a probationary period review at:

  • 3 months (part 1- midway) and
  • Prior to the completion of 6 months (part 2- final).

This provides both the team member and manager the ongoing opportunity to assess whether basic requirements of the position have been met and to measure performance against criteria such as personal qualities, quality of work, quantity of work, position knowledge, customer service, communication, problem solving and decision making, team work, work ethic and behaviour.

5. Guide to Performance Feedback Meetings

  • Advise the team member that they may have a support person present at the meeting;
  • Try to ensure the meeting takes place in a private location free from interruptions;
  • Allow the team member to respond to the issues you have raised and provide them with the opportunity to discuss their performance and behaviour;
  • Ensure that the team member's responses to feedback is documented;
  • Outline the expectations of the position and if not already done so, describe how the team member can work towards meeting these expectations;
  • Encourage the team member to articulate their training/guidance needs and discuss how these can be achieved;
  • Set measurable performance goals and if required allow reasonable and mutually agreed timeframes for improvement;
  • Set an appropriate review date (no later than 4 weeks after the initial meeting);
  • It is important that the team member understands that if work performance does not improve then his or her employment may be terminated;
  • Keep a record of the meeting including dates, what was discussed and the agreed actions or outcomes. Provide a copy of this to the team member.

6. Prior to the End of the Probationary Period

Prior to the end of the probationary period, the employer will need to assess whether the team member's employment should be made permanent or whether the team member's appointment be terminated.

7. Successful completion of probation

On successful completion of the probation period and review, the relevant manager should issue a letter to the new team member confirming their ongoing employment.

FREQUENTLY ASKED QUESTIONS

8. Do casual and temporary team members have a probationary period?

Casual team members and temporary team members are exempt from a probationary period. This is because, by nature of the type of employment, casual and temporary team members are deemed terminated at the end of their last shift and cannot reasonably foresee an ongoing employment relationship.

However, a casual team member who has been employed for more than 6 months, and whose engagement has been regular and systematic, is eligible to lodge a claim for unfair dismissal. This means that you should assess the suitability of a casual team member for continued employment and make a decision about their continued engagement in the first six months of their employment.

9. What should I do if a new team member is clearly unsuitable for their role?

From time to time it becomes clear very early that the new team member does not meet the requirements of the position and is unlikely to meet the requirement of the position within the probationary period.

You do not have to wait until the end of the probationary period before taking action. The decision to terminate the appointment can take place at any time within the probationary period.

10. If I am still uncertain about the suitability of a team member after 6 months can I extend the probationary period?

Probation periods cannot be extended beyond 6 months. If a team member continues to be engaged after the 6 month probationary period, they are considered to have completed their minimum employment period and enjoy full rights to take unfair dismissal action.

When reviewing the performance of an employee, you should consider that the behavioural characteristics being displayed are unlikely to improve once the employee completes probation. An employee "on trial" during probation is likely to be motivated to display their best available behaviours. This is why it is important to address performance concerns and give the employee a chance to improve so that a manager assessing the employee can gain a reasonable insight into what the employee is capable of and how they fit in to the team.

It is also helpful to ensure employees are informed of the purpose of the probationary period, the expectations of the role and encouraged to seek guidance or clarification on tasks or responsibilities. Team members should also be encouraged to actively assess whether they feel the organisation and position are suitable for them.

11. What must I do if I decide to terminate a team member's employment during probation?

If the decision is made to terminate the team member's contract of employment, the team member should be advised of their termination and the reason they are being terminated. They should also be given:

  • the appropriate written notice (as contained in the employee's contract) or payment in lieu of notice;
  • payment of all accrued entitlements;
  • a Separation Certificate; if one is requested;
  • a Certificate of Service, if one is requested.

12. What notice must a team member give to me during their probationary period?

A notice period will be contained in the employee's contract which may provide for a shorter notice period during probation, such as one week applying to termination initiated by either the employer or the team member. This notice is required to be in writing

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