Since the introduction of the Fair Work Act 2009, ‘probationary periods’ are now a moot point and have been replaced with the concept of ‘minimum employment periods’.
One of the recurring issues I have noticed in the employment law arena is the practice of employers attempting to extend the ‘probationary period’ of an employee. What employers may not know is that the concept of ‘probationary period’ has been replaced with the concept of the ‘minimum employment period’.
The ‘minimum employment period’ relates to the minimum period of continuous service an employee must work with an employer in order to be protected by the unfair dismissal regime of the Fair Work Act 2009 (Cth) (“the Act”).
Under the Act, the minimum employment period for a small business employer with less than 15 employees is 12 months’ of continuous service. The minimum period for a large employer with 15 or more employees is six months. The practical effect is that an employee must have been continuously employed for the relevant minimum period before being able to access the unfair dismissal regime.
Continuous Employment Means Continuous
Any unpaid leave – such as unpaid personal or carer’s leave – or unauthorised periods of absence, do not count towards continuous service when calculating the minimum employment period.
When an employee has completed the minimum period, they are protected from unfair dismissal, notwithstanding any attempt on the part of an employer to extend the agreed probationary period. In any event, it is our view that the provisions of the Act do not allow for the extension of any agreed probationary period or minimum employment period.
So, when considering whether to terminate the employment of an employee, it is critical to calculate the exact extent of the employee’s continuous service to determine whether they are protected by the unfair dismissal regime. However, in doing so, employers should not overlook the potential for other employment related claims if the termination breaches any general protections or discrimination laws which may not be subject to the minimum employment period. If in doubt, seek proper legal advice.