Unfair dismissal and probation

The concept of probation in an employment context is tricky. In the first place the Fair Work Act provides that an employee is protected from unfair dismissal if

*the employer is a national system employer; and

** the employee has completed a period of employment with his or her employer of at least the minimum employment period which is 6 months if the employer is not a small business employer and one year if the employer is a small business employer; and

*** a modern award covers the employee’s employment OR

an enterprise agreement applies to the employee in relation to his or her employment OR

the sum of the employee’s annual rate of earnings is less than the high income threshold (currently $162,000).

This statutory protection applies irrespective of whether an employee is subject to a contractual period of probation.

Accordingly the application of a period of contractual probation does not offer an employer covered by the national fair work system any meaningful protection from an unfair dismissal claim once the employee has satisfied the applicable minimum employment period and to the extent that an employer may seek to rely upon the fact of probation and the management of it in a general sense of fairness will likely find the Fair Work Commission reasonably pedantic about its utility.

“The difficulty facing the Respondent is that it essentially reversed the question for consideration. Rather than considering whether the Applicant’s capacity was so lacking that it justified dismissal, it considered whether the capacity was sufficient to keep her employment. The Respondent did not make findings of an absence of capacity which would justify termination. The finding at the Probation Review Committee was she did not fulfil the full expectations of the role, and even then the finding was that it was more probably than not, not an affirmative finding that there was in fact a failure in respect to capacity.

I find there was no valid reason for the dismissal.”

Werner v St Michael’s Association [2020] FWC 2896

NB For the position as this issue applies to employers in Western Australia not covered by the fair work system see https://fairworklegaladvice.com.au/unfair-dismissal-and-probation/