Can an employer extend a probation period for an employee who is about to complete an initial 6 month probation period?
This is a common question and relates to an area that often causes confusion - the difference between the minimum employment period and a probation period.
A person will have access to unfair dismissal if they have completed a period of employment of at least the ‘minimum employment period’ under the Fair Work Act 2009 (the FW Act).
The FW Act defines the ‘minimum employment period’ as either 6 months for employees of non-small business employers or 12 months for employees of small business employers i.e. one that employees fewer than 15 employees.
If an employee has not served their minimum employment period, then they will not have access to unfair dismissal. However, the employee will still be able to make any other claim that may exist on termination of employment (such as breach of contract, discrimination and adverse action claims).
The minimum employment period will be served regardless of whether the employer and employee are aware of its operation.
An employer can also choose to put a period of time that the employer refers to as a ‘probation period’ in an employment contract. Common probationary periods are 3 or 6 months in length and run concurrently with the minimum employment period.
This probation period does not impact on whether the employee has served their minimum employment period and therefore whether the employee would have access to unfair dismissal. However, an employer may seek to include a probation period in an employment contract for various reasons such as committing to attentive performance feedback and getting to know an employee's strengths and weaknesses. A probationary period may also be used as a psychological tool to make the employee understand that they are being scrutinised by the employer for the duration of the probation period.
There are no restrictions on how long a probation period can last, although it will not impact on access to unfair dismissal. For example, a probation period can last for 3 months and if the employer terminates after those 3 months but before the employee has served their minimum employment period, the employee will not have access to unfair dismissal.
Similarly, a probation period can last for 2 years but if the employee has served their minimum employment period and the employer seeks to terminate before the complete 2 years have passed, the employee will still have access to unfair dismissal.
Technically speaking, an employer can only extend a probation period if the contractual arrangements in relation to the probation period would allow the employer to do so. For example, a written contract that listed a probation period of 6 months but that allowed an employer to extend it for an additional 3 months at their discretion would enable the employer to extend in those circumstances.
However, as mentioned above, if an employee continues to be engaged after a 6 month probationary period (or 12 months for small business employers), they are considered to have completed their minimum employment period and therefore have full access to the unfair dismissal laws. Given this it is strongly encouraged to evaluate an employee's performance and their suitability for the role before the end of the minimum employment period.
For more information about minimum employment and probation periods, please call the Ai Group Workplace Advice Line on
1300 55 66 77.
