Breach of Contract Dispute Lawyers NSW

If you are a business owner and you think it is safe to dismiss an employee during a probation period… think again.

There is a common misconception among both employers and employees that an employee can be dismissed at any time during a probation period and they will not be eligible to bring a claim for unfair dismissal. Similarly, it is also commonly believed that if an employee is dismissed after their probation period then, subject to meeting all other relevant eligibility criteria, they are entitled to bring a claim for unfair dismissal.

This is not the case at law.

Section 383 of the Fair Work Act 2009 (Cth) states that:

The minimum employment period is:

  • if the employer is not a small business employer – 6 months ending at the earlier of the following time:
    • the time when the person is given formal notice of dismissal;
    • immediately before the dismissal; or
  • if the employer is a small business employer – one year ending at that time.

This means that for an employee to be eligible to bring a claim for unfair dismissal, they must have completed the minimum employment period.

While an employer may dismiss an employee at any time, they will leave themselves open to a risk of an unfair dismissal claim being made by the employee if they are eligible to do so, including if they have completed the minimum employment period.

If there is a requirement in an employment contract that an employee must complete a three (3) month probation period, but the employee is subsequently dismissed after having completed five (5) months of service with the employer, they will not be eligible to bring a claim for unfair dismissal because they have not completed the minimum employment period.

Similarly, if there is a requirement in an employment contract that an employee must complete a nine (9) month probation period (note: employers should be aware that a probation period of this length may be unenforceable), but the employee is dismissed after only seven (7) months of service with the employer, they will be eligible to bring a claim for unfair dismissal, subject to meeting all other relevant eligibility criteria, even though they were still subject to a probation period at the time of dismissal because they have completed the minimum employment period.

If you are an employer, we can assist you in preparing or reviewing your employment contract and providing you with advice about probation period and minimum employment periods.

If you are an employee and you require advice about your eligibility to bring a claim for unfair dismissal, we can also assist you.

Please note that the information provided above applies to unfair dismissal application only and does not apply to Fair Work Commission general protections applications, or any other legal claims.

Call (02) 4904 8000 or click here to contact us if you have any further questions.


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