Unfair dismissal and probation

Many employees believe, wrongly, that he or she is not subject to Australia’s unfair dismissal protection laws if he or she is dismissed while serving out a period of probation. This is a view shared by many small business owners who may not have human resources personnel.

The fair work system, which covers most of Australia’s workers (because the system covers the employment of people who work for “national system employers” which by definition means any trading corporation), has nothing at all to say about probation.

In the national system, protection from unfair dismissal arises under the Fair Work Act, which provides that an employee is protected from unfair dismissal if he or she has been employed for at least 12 months if the employer is a small business employer (14 or less employees) and at least 6 months all other national system employers.

Nor does probation have any role to play in  the application of the general protections of the Fair Work Act; see for example Pacheco-Hernandez v Duty Free Stores Gold Coast Pty Ltd [2018] FCCA 3734.

However, in Western Australia, its State system covers the employment of employees of various State government instrumentalities and of sole traders (ie unincorporated entities) and the Industrial relations Act 1979 (WA) requires the Commission to take into account the issue of probation when determining whether a dismissal relevantly unfair.

Sec 23A(2) provides that

(2)         In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee —

(a)         at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and

(b)         had been so employed for a period of less than 3 months.