Dismissal of “smart a-se” during probation period unlawful, says Federal Court – what you need to know about probationary periods

Despite the popular assumption, employers cannot simply dismiss staff without consideration of broader workplace laws during their probation period.

The Federal Circuit Court recently ruled that a bank took unlawful adverse action by dismissing a “smart arse” analyst during his three-month probationary period, partly because he complained about the workplace culture and his supervisor.



Rejecting claims by the employer that the government client analyst was sacked as a result of poor performance, the judge found the company’s head of client services decided to dismiss the analyst before he could lawfully pursue an unfair dismissal claim post probation and ahead of his complaint becoming formalised.

The court heard that around a month before the end of his probationary period the analyst had complained to the HR team about his supervisor confronting him over being absent from his desk.

The next day his supervisor, unaware of the complaint, criticised his performance but offered to extend his probation.

But when the analyst criticised his supervisor and the “workplace culture” during a meeting held one week later to discuss his future, the supervisor withdrew the offer and recommended his dismissal.

The bank dismissed him the following day with a week’s wages in lieu of notice. It claimed it terminated his employment for failing to perform to the required level when he was unlikely to improve.

The supervisor contended that the employee had chosen to take “a defensive and hostile approach” to feedback and that this gave him no confidence to continue the employment relationship.

In turn, the employee alleged that the supervisor had a “personal obsession” about people being away from their desks and had expressed a similar negative opinion about a former employee. He contends that his absences from his desk were consistent with advice from Human Resources that it was best to deal face to face with other people.

It also denied that the analyst had complained, arguing that the discussions he had with the HR team did not constitute a complaint.

However, the judge said he had “no doubt” the analyst made the complaint for the purposes of s341(c)(ii) of the Fair Work Act and said that although he had not committed to pursuing it formally when asked about it on three occasions, this did not mean he had abandoned it.

The judge said the supervisor, as an “impulsive man who is quick to anger”, withdrew the probation extension in “a fit of pique” and recommended dismissal after becoming aware of the complaint against him.

He also found that the bank’s head of client management, as the “effective decision maker”, had decided to terminate the analyst on the recommendation of the supervisor and HR manager and was driven to get rid of him before he could lawfully claim unfair dismissal.

“[The head of client management] was well aware that if [the analyst’s] complaint gained formality, it could well take him past the end of the probation period,” the judge said.

“Essentially, [the head of client management] had decided to support his manager and dispose of the person who had complained about him. He was frustrated that the termination was taking too long and in effect, overrode HR concerns about due process.”

While the judge agreed with descriptions labelling the analyst a “clever d*ck” or a “smart arse”, he said his complaints should not have been “so lightly dismissed” and said his dismissal was “certainly not an appropriate response”.

The judge will hear from the parties on compensation and a penalty sought by the analyst but said the relief he would grant, at this stage, would be in the form of a declaration.

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.

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

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.

Both parties in the case mentioned above could have benefited from ongoing and regular feedback during the probation period rather than waiting for the formal probation meeting, the judge finding that the supervisor “did not raise any issue with” the employee until the day before the formal performance review.

iHR Australia’s Director Workplace Relations Mr John Boardman said “that managers often fail to test and / or stretch employees during their probationary period to test their suitability thoughout their probationary period. If employers leave their assessment and feedback to the last few weeks of the probation it may lead to the employee feeling threatened and heighten the risk of bullying complaints being made”.

However, Mr Boardman said that “underperforming employees should not think by lodging a formal complaint that they can circumvent appropriate performance management or disciplinary action.”

“In the case in question, the actions of the line manager were fundamental to the judge’s decision”, Mr Boardman said.

To help you avoid the time and cost of adverse action and other legal proceedings, iHR Australia can advise on probationary periods generally, the development of probationary plans and advice regarding appropriate HR policies and procedures.

Well-documented human resources policies and procedures can help staff to understand how an organisation ‘works’. They also minimise business and legal risks.

HR policies and procedures establish and document your organisation’s expectations, standards and responsibilities. Clear procedures guide managers and employees through the practical application of policies. Well-documented policies and procedures are tangible evidence that your organisation has taken reasonable steps to minimise business risks and unlawful practice or behaviour.


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