The utility to employers and employees of a period of employment upon probation is problematic. It is often wrongly believed that the device is a very useful protection to employers, when its impact is not generally understood. The reality is that most employers and employees find themselves subject to the Federal system of workplace relations in Australia, administered under the Fair Work Act.
The Fair Work Act provides that employees whose employment is terminated may not take proceedings for relief for unfair dismissal unless the length of their employment “qualifies” them to the protection of the federal unfair dismissal laws.
If the employer has less than 15 employees at the time of the termination of employment, the employer is deemed to be a small business and an employee may not take proceedings for unfair dismissal unless he or she has been employed for at least 12 months.
If the employer at the relevant time has more than 15 employees, then the qualifying period to bring a case for unfair dismissal is employment for a term of 6 months.
The Fair Work Commission’s jurisdiction is thus defined by those conditions, and not in any way by a period of probation.
In the Western Australian system, the Western Australian Industrial Relations Commission is entitled to examine whether a dismissal is unfair irrespective of a period of probation, although the legislation commands that it must take it into account in determining the substantive question of whether the dismissal was unfair.