Welcome to our HR Myths series. Where we explore the urban legends and folk tales that have worked their way into Human Resources practices.
Our first myth is the idea that probation is some kind of magic period where you can end employment at any time, for any reason, without following any process.
Believing probation gives you total freedom is a bit like leaving milk and cookies out for Santa… the milk and cookies are real but it’s not Santa Claus eating them. In the same way, during probation some extra protections exist, but full freedom is a myth.
The Myth: Probation Means Freedom to Terminate
Many employers assume that probation gives them complete protection. The thinking goes: “They’re still in probation, so we can let them go without any issues.”
But probation isn’t a legal shield. It’s simply a contractual period used to assess whether someone is suitable for the role, and it coexists with some time period termination protections for businesses.
The Reality: Probation Does Not Remove Your Obligations
While most probation periods fall within the minimum employment period required for unfair dismissal claims, probation does not eliminate all legal risks.
Even during probation, employees may still have protections under the Fair Work Act:
- Unfair Dismissal Claims – Only available once the employee has completed the minimum employment period. If you employ 15 or more staff, employees gain access to unfair dismissal after 6 months. If you employ fewer than 15, they gain access after 12 months.
- General Protections / Adverse Action Claims – Employees can take action if they are dismissed for prohibited reasons, such as discrimination, exercising workplace rights (e.g., making a complaint or taking leave), or asserting entitlements. These protections apply even during probation.
For example, in a real case, an employee was dismissed during their probation period shortly after raising concerns about their workplace. The employer was unable to demonstrate that the dismissal was for a reason unrelated to the employee’s complaints. As a result, the dismissal was found to be unlawful because it amounted to adverse action under the Fair Work Act’s general protections provisions. Being on probation did not shield the employer – they were still held legally accountable.
The Reality: Process Still Matters
During probation, you should:
- communicate concerns clearly
- give the employee an opportunity to respond
- document performance or behavioural issues
- make decisions based on genuine, lawful reasons
A simple, fair process is often enough – but skipping it entirely can become a problem.
The Reality: Extending Probation Doesn’t Extend Your Legal Protection
Another common misconception is that a longer probation period equals longer employer protection. In reality, it’s not the probation clause that determines what protections apply – it’s how long the person has been employed.
Setting probation at 9 or 12 months doesn’t override these rules. Once an employee reaches the minimum employment period, they can lodge an unfair dismissal claim – regardless of what the contract says about probation.
The Bottom Line
Probation is a valuable tool for assessing fit, but it isn’t a legal loophole. Even during probation, you must act fairly, follow a reasonable process, and ensure any termination is based on lawful grounds.
Probation Management Checklist for Employers
Before the employee starts
- Provide a clear position description.
- Confirm probation length in the contract.
- Communicate performance expectations, duties, and standards.
During probation
- Reiterate performance expectations, duties, and standards.
- Hold regular check-ins (monthly or at key milestones)
- Give direct, specific feedback about any concerns
- Document performance issues or behavioural incidents
- Provide reasonable support or training if needed
- Keep records of all conversations and actions
If issues come up or continue
- Raise concerns early — don’t wait until the final week
- Give the employee an opportunity to respond
- Consider whether more support or clearer expectations are needed
- Assess whether the issues are about capability, conduct or fit
When deciding on termination
- Check the reason is lawful (not discriminatory or linked to a workplace right)
- Ensure the timing falls within the minimum employment period
- Hold a brief meeting to explain the decision respectfully
- Confirm the outcome in writing, including notice or payment in lieu
- Provide the final pay on time, including any accrued annual leave
If extending probation
- Confirm the extension in writing
- Understand that extending probation does not extend your protection from unfair dismissal once the minimum employment period is reached
- Use the extra time to provide additional training and support (if required) and complete proper assessment and documentation
Need Advice?
And as always, we welcome you to contact our team if you have any questions regarding this matter or any other HR concerns. You can contact us by emailing hr@hrcentral.support, or by giving us a call at 1300 717 721.
