Employee Probation Periods: What You Should Know
- 15 hours ago
- 4 min read
Hiring someone new is an investment. It costs time, money, and energy.
A probation period gives you space to assess whether the role is the right fit, and whether the person is the right fit for your business.
But probation doesn’t necessarily mean 'risk free'.
What is an Employee Probation Period?
A probation period is a defined period at the start of employment where both the employer and the employee assess whether the working relationship is working. Think of it as a trial.
It’s not a separate type of employment. It’s simply a contractual arrangement that usually allows for:
Closer performance monitoring
A clear review point
It should always be set out in the employment contract.
Probation Period vs Qualifying Period (They Are Not the Same)
This is where many business owners get caught out.
Under the Fair Work Act 2009, an employee must complete a minimum employment period before they can bring an unfair dismissal claim:
6 months for businesses with 15 or more employees
12 months for small businesses (fewer than 15 employees)
This is often called the qualifying period.
Your probation period does not override this. You can have a 3-month probation, but if you are a small business, the employee still cannot bring an unfair dismissal claim until they have completed 12 months employment.
That’s why many employers generally opt for a probation period of 6 months, as it gives enough time to properly assess performance.
Does Probation Mean I Can Terminate With No Risk?
No. Even if the employee is still under probation and not yet eligible to bring an unfair dismissal claim, there are still significant legal risks to be aware of.
You cannot terminate employment for:
Discriminatory reasons: For example, race, age, sex, pregnancy, disability, religion or other protected attributes.
Exercising workplace rights: This includes making a complaint, raising safety concerns, requesting flexible work, or taking leave.
Temporary absence due to illness or injury: Employees are protected while absent on personal leave within legal limits.
Breach of Contract: If the termination violates terms outlined in the employment contract.
Union involvement: Employees cannot be dismissed for joining or being involved with a union.
These types of claims fall under General Protections, and there is no minimum employment period required to bring one. These claims can be costly, time-consuming, and reputationally damaging.
What Happens When Probation Ends?
When probation ends, the employee continues as a permanent employee (if they were hired as full-time or part-time).
There is no automatic 'confirmation' required unless your contract says so. However, best practice is to formally review and confirm the outcome of the probation in writing.
If you don’t actively manage probation, you may find yourself 9 or 12 months in with performance issues that could have been addressed early.
How to Manage Probation Properly (and Reduce Risk)
Probation should never be a passive waiting period. It should be structured and deliberate.
1. Set Clear Expectations From Day One
Be specific about:
Performance standards
Behaviour expectations
KPIs or deliverables
Cultural fit
If expectations are vague, performance discussions become subjective and harder to defend.
2. Hold Regular Check-Ins
Don’t wait until month six to raise concerns.
Schedule formal check-ins at:
Week 4
Month 3
Month 5 (or earlier if concerns arise)
If there are issues, raise them early and clearly.
3. Document Conversations
Keep file notes of:
Performance discussions
Feedback provided
Support offered
Employee responses
If termination becomes necessary, documentation is critical when defending your decision.
4. Address Issues Before the End Date
If performance is not meeting expectations, don’t simply let probation lapse without action.
You may need to:
Extend probation (if contract allows)
Implement a short Performance Improvement Plan
Make a termination decision before the probation period ends
5. Confirm the Outcome in Writing
Whether the employee passes probation or not, confirm the outcome in writing.
If they pass, outline:
Ongoing expectations
Development focus areas
If they do not pass, ensure the termination decision is compliant and properly documented.
The Business Reality
Recruitment mistakes are expensive. Between recruitment fees, lost productivity, training time, and team disruption, a poor hire can easily cost thousands of dollars.
The probation period is your opportunity to assess, guide, and if necessary, act early.
Handled properly, it protects your business.
Handled casually, it can expose you to avoidable risk.
If you’re unsure whether your contracts, probation clauses, or processes are set up properly, now is the time to check. A quick review can prevent a much larger problem later.
If you’d like support reviewing your employment contracts or setting up a clear probation processes for your team, get in touch. It’s far easier to fix it early than defend it later.
See what we can do for you, and the HR Support Options available to your business. Let’s make managing HR the least of your worries.
Need help? Contact us today - sandra@hrconsultingtas.com.au or 0408 408 225
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The content provided on this website serves as a general information resource on the subjects discussed, and should not be considered tailored to specific individual circumstances or a replacement for legal counsel. While we exert significant effort to ensure the accuracy of our information, HR Consulting TAS cannot ensure that all content on this website is consistently accurate, exhaustive, or current. Recommendations by HR Consulting TAS and any information acquired from this website should not be regarded as legal advice.
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