What is a probation period?
A probation period is a defined trial period at the start of a new employment relationship. During this time, employers assess how well the new employee adapts to the workplace, performs their duties and supports business goals. The employer decides the length of the probationary period and sets this timeline out in the employment contract so that understandings and expectations are clear for both parties.
Most employers choose either a three-month or six-month probation period. Roles that involve technical or high-responsibility tasks may justify additional time. These first six months are critical, as employees of large organisations generally become eligible for unfair dismissal claims under the Fair Work Act after this period.
Modern awards and registered agreements generally contain specific guidelines for probationary periods. Different provisions apply for organisations with fewer than 15 employees, as these are covered by the Small Business Fair Dismissal Code. Reviewing these provisions before finalising the contract is good practice and may prevent problems further on.
Probation periods help both the employer and the employee understand whether the employment relationship is suitable. Employers can assess capability, conduct and workplace fit, while employees decide whether the job and workplace culture suit their expectations.
What are the benefits of a probationary period?
A probationary period allows employers to address concerns early. During probation, employers assess the employee’s performance, identify strengths and resolve issues before they escalate. This process reduces the risk of long-term challenges and helps determine whether the new employee meets the requirements of the specific role.
Regular feedback and targeted development ensure expectations are met and performance issues are identified early. Employees understand expectations when guidance is offered early, and employers gain structured opportunities to check progress. Assigning core responsibilities early helps determine if the employee can meet the role’s long-term requirements.
Probation encourages new employees to ask questions, understand workplace relations processes and gain confidence in their responsibilities. When managed well, the probation period contributes to stronger employee relations and a smoother transition into the workplace.
The difference between a probationary period and minimum employment period
Probation and the minimum employment period are separate concepts. Employers often confuse them, but they operate differently under Australian employment law.
A probationary period is set out in the employment contract. There is no mandated length, and an employer does not have to use one. The probation period provides structure for assessing performance during the early employment relationship.
The minimum employment period comes from the Fair Work Act and determines when an employee becomes eligible to make an unfair dismissal claim. It operates independently of the probation period.
The rules are:
- a small business with less than 15 employees has a 12-month minimum employment period
- a business with 15 or more employees has a six-month minimum employment period
- associated entities count toward total employee numbers.
Employees cannot lodge an unfair dismissal claim until they complete the minimum period of employment, even if their probation period continues beyond that timeframe. For example, if the contract contains a nine-month probation period, an employee in a large organisation becomes eligible after six months.
Although the two periods run at the same time, extending probation does not extend the minimum period or change unfair dismissal protections.
Employment contract considerations for probation periods
A clear employment contract can support a well-managed probation period. Ideally, the contract specifies the length of the probation period, the performance standards expected and the process for reviewing the employee’s performance. Stating these expectations early helps both the employer and the new employee understand expectations.
The contract can outline how and when performance reviews will occur. Many employers choose a review at the one-month mark or schedule regular check-ins throughout the trial period. The contract can also state the notice period required if either party decides to terminate employment during probation.
It is also good practice to include a clause indicating whether probation can be extended. If an extension might be needed, the contract must allow for it. Any extension should be communicated in writing and state the specific amount of additional time.
What are my employee’s rights and entitlements?
Employees on probation have the same entitlements as any other employee under the Fair Work Act 2009 and the National Employment Standards (NES). Whether the employee is a full-time or part-time employee, they continue to accrue annual leave, personal leave and other benefits described in the NES or their employment contract.
Probation does not limit workplace rights under the Fair Work Act. Even within the minimum employment period, employees may lodge a general protections claim if they believe they have experienced adverse action for an unlawful reason. The Fair Work Act’s general provisions protect the rights of employees at work from the first day they are employed.
Do I need to give a reason for termination during the probationary period?
Although employers are not required to provide a reason for dismissal during probation, doing so is best practice. Providing a valid reason based on performance or conduct promotes transparency and supports fair workplace relations. Documenting the reason(s) may help reduce risks linked to general protections or adverse action allegations.
The Fair Work Act provides for employees to receive written notice when their employment is terminated. The written notice includes the notice period and the final day of the period of employment.
It’s a good idea to keep records of discussions, feedback sessions and performance concerns throughout the probation period. This documents the process and can help demonstrate the reasoning and evidence behind any decision to terminate the probation.
General protections and adverse action risks during probation
The general protections of the Fair Work Act apply during the entire employment period and may prevent employers from taking adverse action against employees for unlawful reasons. Adverse action can include termination, reducing hours, changing duties or treating an employee unfavourably.
Employees can lodge a general protections claim if they believe the employer dismissed them or changed their employment for reasons unrelated to performance or conduct. Examples include penalising an employee for making a complaint, seeking payment they are entitled to or requesting leave.
To reduce risks, employers should rely on documented evidence. Regular feedback and clear discussions help demonstrate that any decision about termination was based on objective performance. Procedural fairness protects the employer and strengthens workplace relations.
What about an extension?
Employers may extend probation if an employee shows potential but requires more time to demonstrate full competency. Extensions can be helpful when the employee has faced unexpected challenges or when there has not been enough time to assess their capability.
Once you decide to extend probation, provide written notice specifying the additional time and the reason. Communicating openly supports fairness and helps the employee understand what needs improvement.
An extension does not affect the minimum employment period or unfair dismissal eligibility. Even if probation continues, employees may still become eligible to lodge an unfair dismissal claim once they meet the Fair Work Act threshold.
Are probationary periods only for new employees?
A probationary period is intended for the start of a new employment relationship. If an existing employee’s performance becomes a concern, the existing performance management process is used.
Notice period requirements during probation
Notice periods provided by the NES, employment contract, award or registered agreement apply when employment during probation is terminated. Most employees who have been employed for less than one year may be entitled to at least one week of notice, unless the termination involves serious misconduct. Some agreements include longer notice periods.
Providing written notice and handling entitlements correctly also demonstrates respect for the employment relationship, even when the employee will not continue beyond probation.
How can I ensure the probationary period is a success?
A successful probation period depends on clear expectations, consistent communication and structured performance monitoring. Employers can support new employees through training, guidance and regular feedback. This approach helps identify potential issues early and supports stronger performance outcomes.
Onboarding and early communication help employees understand their responsibilities. Clarifying expectations reduces uncertainty and encourages the employee to focus on meeting standards. Documentation, including performance notes and review forms, provides structure and supports fairness.
Create an onboarding program
A structured onboarding process helps new hires understand workplace culture, reporting structure and operational procedures. Introducing workplace safety expectations and workplace relations policies ensures the employee knows how the organisation manages employee relations issues. Onboarding should outline performance expectations and identify the support the new employee can expect during the probationary period.
Give regular feedback
Regular feedback helps employees adjust, understand expectations and improve their performance. Employers may hold informal check-ins or schedule formal meetings at key stages, such as the one-month mark, three months or the six-month review point. Specific, constructive feedback helps employees address issues and encourages open communication.
Create a record
Documenting performance discussions provides clarity and evidence. Using a probation review form helps track progress and ensures discussions remain structured. After each meeting, employers may send a summary email to the employee outlining expectations and next steps.
Documentation supports fairness and may be important if the employment relationship ends during or at the end of probation.
A probation period provides valuable opportunities for both the employer and the employee to assess suitability and build a positive employment relationship. When supported by clear communication, regular feedback and structured onboarding, probation can help employers reduce risks and support stronger outcomes. With thoughtful planning and careful monitoring, a probation period can help new employees transition smoothly and contribute to a safe, fair and supportive workplace.
