A probationary period can be for a reasonable agreed length; a statutory trial cannot exceed 90 calendar days.
PROBATIONARY PERIODS
Probation is not the same thing as a 90-day trial.
A probationary period can be used to assess suitability, but ordinary dismissal protections still apply. The employer should fairly assess performance, identify concerns and provide a real opportunity to respond and improve.
UNDERSTAND THE PROBLEM
A probationary period does not remove ordinary dismissal protections.
Probation is a contractual period for assessing suitability, but it is not the same as the statutory 90-day trial regime. An employee on probation generally retains the ordinary protections applying to dismissal and disadvantage.
The employer should make expectations clear, identify performance concerns, provide appropriate feedback and support, and follow a fair process if it proposes to end employment for unsatisfactory performance.
WHAT MATTERS
Key differences from a trial period
Probation can be used in circumstances where a trial cannot, including some situations involving existing or previous employees.
Ordinary dismissal protections continue during probation.
The employer should identify concerns, explain expected standards and provide a fair opportunity and support to improve where performance is the issue.
THREE QUESTIONS FIRST
Get these straight before the argument gets bigger.
What does the agreement say about probation?
What concerns were identified and when?
What opportunity and support were provided to improve?
WHAT TO DO NOW
During probation
Read the clause
Check the agreed duration, review process and any specific standards or notice provisions.
Ask for early feedback
Do not wait until the final week to learn that the employer says performance is unsatisfactory.
Keep evidence of progress
Record training, completed work, feedback and any targets the employer says you have met or missed.
Challenge trial-period confusion
If the employer says probation means it can dismiss without process, get the distinction checked immediately.
WARNING SIGNS
Things worth looking at closely.
- The employer treats probation like a trial period
- No meaningful feedback is given until termination
- The assessment criteria were never explained
- No fair opportunity to respond or improve is provided
COMMON MISTAKES
Ways employees accidentally make the problem harder.
DON'T
Assuming probation and a 90-day trial are interchangeable.
DON'T
Waiting passively for a final probation review without asking whether there are concerns.
DON'T
Treating vague feedback as an adequate performance standard.
DON'T
Assuming the end date of probation automatically terminates employment.
POSSIBLE OUTCOMES
What a useful result can look like.
Continuation of employment
Further supported improvement period
A negotiated exit
A personal grievance if probation dismissal is unjustified
FAQ
Probationary periods
Is probation the same as a 90-day trial?
No. A probationary period does not remove the ordinary requirement for a fair and justified dismissal process.
Can probation last longer than 90 days?
A probationary period can be longer, provided the agreed period is reasonable in the circumstances.
Can probation be used for an existing employee starting a new role?
It can be used in circumstances where a trial period would not be available, subject to the employment agreement and ordinary employment obligations.
Can I challenge a dismissal during probation?
Yes, if the ordinary requirements for a justified dismissal were not met.
FROM PROBLEM TO OUTCOME
Most disputes move through the same basic sequence.
- 1Preserve
Documents, dates, evidence and the deadline.
- 2Raise
Put the actual grievance or response clearly.
- 3Resolve
Negotiate or mediate where a sensible resolution is available.
- 4Escalate
Use the ERA or Court where the dispute cannot be resolved.
PROBATIONARY PERIODS
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