A probation period in an employment contract has no standing under the Fair Work Act. What decides when an employee can bring an unfair dismissal claim is the minimum employment period in section 383: six months, or twelve months where the business has fewer than 15 employees. It runs on its own clock whatever the contract says, and an employer who extends probation believing the protection extends with it has misread the law.
That gap between the contract and the statute is where most probation mistakes start. Daniel Holbrook of Brookvale HR Solutions sets out how probation periods in Australia actually work, which protections apply from an employee's first day, and how to manage probation so that the end of the probationary period is a decision rather than a dispute.
What a probation period in Australia is, and what it is not
Under Australian employment law, a probation period, sometimes written as a probationary period or trial period at the start of an employment relationship, is a period during which the employer assesses whether a new employee is suitable for the role, including cultural fit with the team. It's a contractual arrangement, set out in the employment contract or in a workplace policy, and it usually runs for three to six months.
It's not a separate category of employment. An employee on probation is employed on a permanent basis from the first day, whether full-time or part-time, and they're covered by the applicable modern award or enterprise agreement and the National Employment Standards from that day. There's no reduced probationary pay rate, and no suspension of statutory entitlements while probation runs.
Full-time and part-time probationary employees accrue and can access their leave entitlements in the ordinary way from the first day of employment, including annual leave and personal/carer's leave. Nothing in the National Employment Standards pauses accrual during probation.
The minimum employment period, which is the one that matters
What the Fair Work Act does contain is a minimum employment period. Under section 383, the minimum employment period is:
- 12 months, if the employer is a small business employer
- 6 months, in any other case
An employee can make an unfair dismissal application to the Fair Work Commission once they have completed that minimum employment period and meet the Act's other eligibility tests. This is the only qualifying period that affects unfair dismissal, and it applies whether or not the employment contract mentions probation at all.
Because the two periods are independent, they can diverge. A contract can specify a three month probation period, but the employer remains protected from unfair dismissal claims until the minimum employment period ends. More dangerously, a contract can specify, or be extended to, a probation period longer than the minimum employment period. A probation period that runs past six months in a business with 15 or more employees gives no protection beyond six months at all.
How to count to "fewer than 15 employees"
Whether the minimum employment period is six months or twelve depends on whether the business is a small business employer, defined in section 23 as an employer that employs fewer than 15 employees at the relevant time. The count isn't simply the number of permanent staff on the payroll.
The headcount includes:
- Full-time and part-time employees
- Regular casual employees, being casuals employed on a regular and systematic basis
- Employees of associated entities, which aggregates the headcount across related companies
- The employee being dismissed, and any other employee dismissed at the same time
That last inclusion matters in a restructure. A business with 16 employees that dismisses three at once still counts 16, not 13, so it isn't a small business and the qualifying period is six months, not twelve. The associated entities rule catches group structures, where each company looks small on its own and the group doesn't.
When a casual's service counts toward the qualifying period
Periods of casual employment don't automatically count toward the minimum employment period. Under section 384(2)(a), a period of casual service counts only where both of the following apply:
- The employment as a casual employee was on a regular and systematic basis
- During that period of service, the employee had a reasonable expectation of continuing employment on a regular and systematic basis
A casual who converts to permanent employment after a year of regular weekly shifts may therefore already have completed the minimum employment period on the day they convert.
Employer rights during the probation period
Within the minimum employment period, an employer can terminate employment without an unfair dismissal claim being available to the employee. That's the genuine and useful protection probation periods are built around.
The protection has limits that matter:
- General protections still apply. An employee can't be dismissed for exercising a workplace right, and this protection doesn't depend on completing any qualifying period.
- Discrimination law still applies, even during probation. Dismissing someone because of a protected attribute is unlawful from the first day.
- Notice still applies, unless the contract expressly excludes it or the employee is dismissed for serious misconduct.
Protections that apply from day one
General protections
The general protections in Part 3-1 of the Fair Work Act apply from the start of employment. An employer must not take adverse action against an employee because they have a workplace right, have exercised a workplace right, or propose to. The protection has no minimum employment period and no small business exemption.
A workplace right includes being entitled to a benefit under a workplace law, award or enterprise agreement, and being able to make a complaint or inquiry in relation to employment. An employee who is dismissed shortly after raising a pay query, asking to take carer's leave, or reporting a safety issue can bring a general protections claim, even in their first week.
This is the risk that probation doesn't manage. Where a probationary dismissal follows closely on a complaint, a query about superannuation or a request for leave, the timing alone can support an inference of adverse action. In a general protections claim the employer has to prove the dismissal was not for the prohibited reason, so a clear record of a separate, lawful reason is worth building from the first week.
Discrimination protection
Section 351 prohibits adverse action against an employee or prospective employee because of the person's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, social origin, or being subjected to family and domestic violence. The protection reaches a person applying for a job and continues through probation and beyond. State and Territory anti-discrimination law runs in parallel.
Notice of termination on probation
A probationary dismissal isn't a dismissal without notice. The National Employment Standards notice requirement in section 117 applies to employees on probation, and the employer must give written notice of the day of termination and either the required notice period or payment in lieu.
For an employee whose continuous service with the employer is not more than one year, the minimum period of notice under section 117(3)(b) is one week. The employee's award or enterprise agreement, or their employment contract, may require more.
Section 123 lists the employees to whom the notice requirement doesn't apply. That list includes casual employees and employees dismissed for serious misconduct. Serious misconduct is defined in regulation 1.07 of the Fair Work Regulations and centres on wilful or deliberate behaviour inconsistent with continuing the employment, or conduct that causes a serious and imminent risk to health and safety or to the business. Underperformance that has become frustrating isn't serious misconduct.
Where an employee doesn't pass probation, they remain entitled to receive notice or payment in lieu, any wages owing, and any accrued but unused annual leave paid out. Termination processes are covered in more detail in ending employment lawfully.
Extending probation
Employers often ask whether they can extend the probationary period when they're not yet sure about a new employee. Contractually, an extension may be available where the employment contract or policy provides for it, and it should always be agreed and recorded in writing.
The extension doesn't extend the minimum employment period. If a business with 15 or more employees extends a six month probation to nine months, the employee has access to unfair dismissal protection from six months regardless. An extension can still be useful as a structured additional review period, but it offers no legal protection past the minimum employment period and shouldn't be treated as though it does.
What happens at the end of the probationary period
The end of probation should be a decision, communicated clearly and recorded. If the employee has met the requirements of the role, confirm in writing that they have completed a successful probation period. If they haven't, the decision to end the employment should be made, and acted on, before the minimum employment period ends.
Drift is the recurring problem. Probation end dates pass without a formal review, the employee assumes they're confirmed, and the employer assumes the matter is still open. By the time the concern is raised, the minimum employment period has often passed, and the employee has full access to unfair dismissal protection.
Managing probation periods: best practice
Set clear expectations from day one
Tell the new employee, in writing, what the probation period is, how long it runs, how you'll assess performance or conduct, and when the probation review will take place. Good onboarding makes those expectations concrete rather than aspirational.
Give regular feedback during probation
Hold regular check-ins throughout probation, and record them. Where there are performance concerns, raise them early and specifically, and give the employee a genuine opportunity to improve. An employee who receives regular feedback and support during probation is far less likely to experience the end of the probation period as a surprise, and the record of that feedback is the strongest evidence of a separate, lawful reason if a general protections claim is ever made. The same principles apply to managing performance after probation.
Hold a formal review before the minimum employment period ends
Schedule a formal review meeting well before the end of the minimum employment period, not on the last day of it. The outcome is one of three things: confirmation of ongoing employment, an extension of probation by agreement, or termination. Whichever it is, record it in writing.
Align probation with the minimum employment period
A probation period that is shorter than or equal to the minimum employment period keeps the contract and the statute pointing in the same direction. Six months in a business with 15 or more employees, or up to twelve months in a small business, is usually the most defensible setting.
