Probation Period Rights Australia 2026: Can You Be Fired During Probation?

A probation period is a trial period at the start of employment, typically 3-6 months, during which the employer assesses whether the employee is suitable for the role. Probation periods are NOT a creation of the Fair Work Act — they're contractual arrangements set by the employer. The Fair Work Act does not mention probation periods at all.

What the law does set is a 'minimum employment period' before you can access unfair dismissal protections: 6 months for businesses with 15+ employees, or 12 months for small businesses (fewer than 15 employees). This is often confused with probation, but they're different concepts.

Your contractual probation period can be shorter or longer than the minimum employment period.

From your very first day of employment, whether on probation or not, you are entitled to: the correct pay rate under your award or enterprise agreement, superannuation at 12% of ordinary time earnings, accrual of annual leave (from day one), accrual of personal/carer's leave (from day one), notice of termination under the NES (1 week if employed for less than 1 year), protection against discrimination, bullying, and sexual harassment, general protections (you cannot be dismissed for exercising a workplace right, even during probation), safe working conditions under WHS laws, and the right to receive payslips. Your employer can't pay you a lower rate during probation or withhold leave accrual. All NES entitlements apply from the first day of employment.

Yes, it is generally easier for an employer to terminate during probation, but they still must: provide the notice period required by the NES (1 week for employment under 1 year, unless the award or contract provides more), pay out any accrued leave, not dismiss you for a discriminatory reason (age, gender, race, disability, etc.), not dismiss you for exercising a workplace right (making a complaint, taking leave, etc.), and follow the Small Business Fair Dismissal Code if they are a small business. What you do NOT have during the minimum employment period is access to unfair dismissal claims. The upshot: the employer doesn't need to follow a formal performance management process or demonstrate a 'valid reason' — they simply need to provide notice and not breach general protections or discrimination laws.

Even though you cannot lodge an unfair dismissal claim during the minimum employment period, you may still have other legal avenues. General protections claim: if you were dismissed for exercising a workplace right (e.g., taking sick leave, raising a safety concern, asking about your pay), you can make a general protections application to the FWC — there is NO minimum employment period for this. Anti-discrimination claim: if you were dismissed because of a protected attribute (pregnancy, disability, age, race, gender, etc.), you can lodge a complaint with the Australian Human Rights Commission or state anti-discrimination body.

Breach of contract: if your employer didn't follow the termination process set out in your employment contract, you may have a breach of contract claim. Underpayment recovery: ensure all accrued leave and notice period are paid.

Quick version: If not, report to the Fair Work Ombudsman.