Probationary periods

What probationary periods are and when they can be used

A probationary period is a set amount of time where an employer can see if a new employee is suitable for the job.

A probationary period:

• can be for any length of time as agreed by the employer and employee, as long as:
  • the timeframe is reasonable, and
  • the timeframe considers all the relevant circumstances of the employee, employer and the job
• can be used when the employee is starting a new job, even if:
  • they are working for the same employer, or 
  • they have worked for the employer before, and
• must be used at the start of the employee’s new job.

The probationary period cannot be used after a trial period.

Before a probationary period starts

Before the probationary period starts:

• the employer and employee must agree to a probationary period, and
• information about the probationary must be included in the employment agreement.

Probationary periods must be in employment agreements

If the employer and employee agree to a probationary period, the employment agreement must state:

• that there is a probationary period, and
• how long the probationary period will last.

Employers who want to add a probationary period clause into an employment agreement should seek legal advice.

Employees on a collective agreement

If an employee has a collective employment agreement, they can also have extra individual terms and conditions. These individual terms add to the collective agreement and cannot contradict anything in there.

This means if the collective agreement says they cannot be employed with a probationary period, their individual terms must not include a probationary period.

Rights and responsibilities during a probationary period

Employees and employers have rights and responsibilities during the probationary period.

Employee rights and responsibilities during a probationary period

Employees must be paid during the probationary period.

If an employee is on a probationary period, they have the same rights and responsibilities as any other employee. They must also be treated the same as any other employee.

Employee rights and responsibilities

Employer rights and responsibilities during a probationary period

Employers have the same rights and responsibilities during a probationary period as any other time during employment.

This includes:

• telling the employee if there are any issues with their work and what those issues are
• telling the employee what good performance looks like
• telling the employee if there is a chance their employment might not continue after the probationary period ends
• giving the employee the opportunity and resources to improve, for example, feedback, support and training.

Employer rights and responsibilities

Training, feedback and support

It is good practice for the employer to tell the employee at the start of the probationary period when they can expect to receive feedback, support and training.

Providing this regularly helps the employee to know if there are issues and gives them a chance to improve before the end of the probationary period.

The employer must follow through on any commitments they make to the employee.

Growing performance, training and development

What happens at the end of a probationary period

If the probationary period goes well, no one needs to do anything. The employee will keep working once the probationary period ends. The employer can also choose to end the probationary period early and confirm the employee can keep working.

If the employee is not suitable for the role, then the employer can dismiss the employee at the end of the probationary period. There are rules they must follow before they dismiss the employee.

Dismissal at the end of a probationary period

If an employer wants to dismiss an employee, they must have:

• assessed the employee fairly to see if they are suitable for the job
• told the employee why their performance was not good enough
• told the employee that there is a possibility they are going to end their employment, and
• given the employee an opportunity to respond to these points.

If the employer still decides to dismiss the employee, they must give them the amount of notice stated in their employment agreement. The employer must also follow all the other dismissal rules.

Dismissal

If an employee thinks the dismissal is unfair

If an employee believes their employer has not followed the rules for dismissal, they can raise a personal grievance. The employee might want to do this if they:

• think the employer did not have a good reason to dismiss them
• were not given appropriate advice and training on how to do the job effectively 
• were not fairly assessed for the job, or
• were not given fair warning that they were going to be dismissed.

Personal grievances