Starting a new job often comes with a probation period. Many employers use one, and many employees accept it without asking what it means. It can feel like a trial run where the normal rules are switched off. That is not how it works under Australian workplace law.
This guide explains what a probation period is and which rights apply during it. It also covers how probation sits beside the minimum employment period for unfair dismissal. The information relates mainly to employees in the national workplace relations system. Rules can differ in some situations and they change over time.
What a probation period is
A probation period is a set time at the start of a job. The Fair Work Ombudsman guidance on probation periods says it gives the employer and employee a chance to check the employee is suitable for the role. It often runs for 3 to 6 months from the day the employee starts. The employer usually decides how long it lasts.
Probation is usually written into the employment contract or letter of offer. It works best when both sides know what is expected from the beginning. A clear position description and regular check ins help a new employee know where they stand. The guide to the legal practicalities of starting a landscaping business lists employment contracts among the documents a new business should prepare.
Your entitlements during probation
An employee on probation keeps the same entitlements as someone who is not on probation. That includes the National Employment Standards, which set minimum conditions for employees. Full time and part time employees accrue paid leave during probation. They can also take it, including annual leave and sick leave.
Pay must still meet the relevant award, enterprise agreement or contract. A probation period is not a reason to pay less or offer fewer conditions. If an employer suggests otherwise, it is worth checking the details with the Fair Work Ombudsman. Keeping copies of pay slips and the contract makes any later question easier to answer.
Ending employment during probation
Either side can end the job during probation, but the usual notice rules still apply. The Fair Work Ombudsman says an employee who does not pass probation is still entitled to notice. They must also be paid out any unused annual leave they have built up. Probation is not a way around these obligations.
Under the National Employment Standards, minimum notice depends on the length of continuous service and the employee’s age. Most people on probation have worked 1 year or less, so the minimum is 1 week. Longer service brings longer notice, up to 4 weeks after more than 5 years. Employees over 45 with at least 2 years of continuous service get an extra week.
An award, enterprise agreement or contract can set a longer notice period than the minimum. It cannot set less than the standards or the relevant award. The employer must give written notice that confirms the last day of employment. If the employer pays out the notice instead, that payment must include items such as loadings, allowances and penalty rates.
There is one main exception. An employer does not have to give notice when an employee is dismissed for serious misconduct. Casual work usually does not count as continuous service for notice purposes either. These are general rules and the details of each case matter.
Probation and the minimum employment period
Many people mix up probation with the minimum employment period. They are separate ideas. Probation is set by the employer, usually in the contract. The minimum employment period comes from the Fair Work Act 2009 and decides when an employee can apply for an unfair dismissal remedy.
The Fair Work Commission explains who is eligible to make an unfair dismissal claim. The minimum employment period is 6 months where the employer has 15 or more employees. It is 1 year where the employer has fewer than 15 employees, which is how a small business is defined. Other eligibility rules apply as well, including a high income threshold.
This means an employee dismissed in the first months of a job may not be able to bring an unfair dismissal claim. Anyone unsure about their position should get advice quickly. Unfair dismissal applications must be lodged within 21 days of the dismissal taking effect. The count starts on the day after the dismissal.
Notes for small business employers
Small business owners often handle hiring themselves. Before the first hire, many owners also weigh up how to set up the business. The guide on choosing between a sole trader or company structure explains that decision. Sorting the structure out early makes later paperwork simpler.
The Small Business Fair Dismissal Code is worth knowing about. Under the Fair Work rules, the Commission will treat a dismissal as fair where a small business employer can show it followed the Code. Reading it before any problems arise gives an owner time to set up fair processes. Clear notes of performance discussions during probation also help.
Making probation work for both sides
A probation period is most useful when it has a clear purpose. Employers can set out the main duties and how performance will be reviewed. Employees can ask questions early if anything is unclear. Short, regular conversations usually work better than one review at the very end.
Written records help everyone. A contract, a position description and notes from review meetings give a shared reference point. If the job ends during probation, those records show what was discussed. They also help both sides check that notice and final pay were handled correctly.
Some employees are covered by a state system
The rules in this guide relate to the national system under the Fair Work Act. Some employees in Western Australia are covered by the state industrial relations system instead. The WA Government publishes its own guidance on minimum notice for those employees. Rules on notice and dismissal can differ between systems, so check which one applies to you.
Frequently asked questions
Do I get paid leave while on probation?
Yes, if you are a full time or part time employee. You accrue paid leave such as annual leave and sick leave during probation, just like other employees. You can also take that leave while still on probation.
Can my employer end my job without notice during probation?
Generally no. An employee who does not pass probation is still entitled to notice under the usual rules. The main exception is dismissal for serious misconduct.
Can I claim unfair dismissal while on probation?
It depends on the minimum employment period rather than the probation label. That period is 6 months, or 1 year where the employer has fewer than 15 employees. If you have not reached it, an unfair dismissal claim is generally not available.
How long can a probation period be?
The employer usually sets the length. The Fair Work Ombudsman notes it often ranges from 3 to 6 months. It starts from the day the employee begins work.
This article is general information about Australian workplace law only and is not legal advice. Laws and processes differ between states and systems and they change over time. For advice on your situation, speak with a qualified employment lawyer.