Understanding legalities during the employment probationary period

Understanding legalities during the employment probationary period

Written by Jaaden Morrall, Senior Workforce Advisor, Legal and Workforce

Probationary period

The probationary period is a time when an employer and employee can assess their suitability for remaining in an employment relationship.

Employees who are within their probationary period often won’t qualify for protection against unfair dismissal, but they are still protected against dismissal for ‘protected reasons’ such as exercising a workplace right or against discrimination.

We’ve answered a few of the commonly asked questions our team receives regarding probationary periods below: 

What is a probationary period?

A probationary period is a set length of time that the employer and/or legislation decides. It ranges from 3 months to 12 months, depending on the jurisdiction your council is governed by. The timeframe is agreed upon at the commencement of employment and should be stipulated in the employee’s employment contract. It provides the employer and employee with an opportunity to assess whether the employment relationship is suitable.

Outside of legislative entitlements, the employer may decide to set a different timeframe for the probationary period. This acts as a ‘review period’ to carefully assess the employee’s suitability for the role. This will include assessing their ability to meet the expectations of the role and whether they are a good fit with your organisational culture.

What probationary period applies to employees in local government?

Section 315 of the Industrial Relations Act 2016 (Qld) (IR Act) provides that the probationary period is during the first 3 months of employment with an employer, unless the employee and employer agree in writing on a shorter probationary period, or none at all.

Does the employee have different entitlements during the probationary period?

During this time an employee is unable to lodge an unfair dismissal claim, however, they can still lodge other claims such as a general protection claim, which is covered in Chapter 8 of the IR Act. What some employers don’t realise, is these claims can be made at any time, including during the recruitment process. Therefore, it’s important to remember that they still apply during the probationary period.

All other entitlements remain the same as an employee who has passed their probationary period. This includes leave entitlements, any required notice period for termination of employment and any applicable allowances or benefits as per the appropriate industrial instrument.

Can you extend an employee’s probationary period?

The probationary period set by the IR Act is relatively short (3 months) if you’re comparing it to the Federal jurisdiction where the minimum employment period is 6 months, or 12 months for a small business with under 15 employees. As a result of this, we find some councils prefer that the probationary period is extended, and usually we see around 6 months as being the preferred period. Any time the probationary period is extended, the particulars must be assessed on a case-by-case basis to ensure that it is reasonable in the circumstances.We recommend when you consider extending the probationary period, it’s done at the commencement of employment and is clearly outlined in their employment contract.

A recent case before the Queensland Industrial Relations Commission (QIRC), Ncube v Cairns Regional Council [2022] QIRC 75, indicates that a six-month probationary period is a reasonable extension in most circumstances.

We have answered more of your commonly asked questions in an extended version of this article, exclusive to HR Assist subscribers. Some examples of the questions are whether you can terminate during the probationary period without reason and what to do when the probationary period ends.

If you’re interested in reading the extended version, please send an email to hrassist@wearepeak.com.au to enquire about subscribing, or you can log in using the following link if you’re already subscribed: https://hrassist.com.au/home.

Further, if you have a situation regarding employment contracts, probationary periods or any other matter that required legal assistance, please call the LGAQ IR Helpdesk for free as part of your member services on 1300 542 700, option 1.