Probation Period Rights: What Your Employer Can and Can't Do

A probation period is a trial period at the start of employment, typically 3 to 6 months, during which the employer assesses whether the employee is suitable for the role. Here is the critical point that many workers — and some employers — don't understand: probation periods aren't defined or required by the Fair Work Act 2009. They are a contractual arrangement between the employer and employee, usually set out in the employment contract or letter of offer.

Let's break this down. The Fair Work Act doesn't use the word 'probation' at all. What the Act does establish is a 'minimum employment period' of 6 months (or 12 months for small business employers with fewer than 15 employees) before an employee can access unfair dismissal protections.

Many employers set their probation period to match this minimum employment period, but they're separate concepts. Your probation period could be 3 months, while the minimum employment period for unfair dismissal is still 6 months regardless. The practical effect is that a probation period primarily affects the notice period for termination under your contract and any contractual benefits that are conditional on passing probation. It doesn't reduce your statutory entitlements under the Fair Work Act or the National Employment Standards.

From the very first day of employment, including during any probation period, you are entitled to every National Employment Standard (NES) entitlement. This includes the national minimum wage or your applicable award/agreement rate in full — there's no reduced 'probationary rate' under the Fair Work Act. You accrue annual leave at 4 weeks per year (pro rata) from day one.

Let's break this down. You accrue personal/carer's leave at 10 days per year (pro rata) from day one. You're entitled to public holidays and to be absent on those days without loss of pay.

You are entitled to superannuation guarantee at 12% of ordinary time earnings from the first dollar earned. You receive the benefit of maximum weekly hours (38 hours for full-time) and requests for flexible working arrangements. You are covered by work health and safety laws and workers compensation from the moment you start work. If you're employed under a modern award, you are entitled to the full award rate for your classification, including penalty rates, overtime, and allowances.

If you are employed under an enterprise agreement, you receive the full benefits of that agreement. An employer cannot pay you below the award rate or withhold entitlements during probation — doing so is a contravention of the Fair Work Act with penalties of up to $93,900 per breach for a corporation.

Yes, you can be terminated during probation, but your employer must still follow the law. Under section 117 of the Fair Work Act, an employer must provide the minimum notice period set out in the NES. For employees with less than 1 year of service, this is 1 week.

Here's the thing. However, your employment contract may specify a shorter notice period during probation — commonly 1 day or 1 week. If your contract provides for a shorter notice period during probation than the NES minimum, the NES minimum of 1 week still applies because the NES overrides any less favourable contractual term.

If your contract provides for a longer notice period (for example, 2 weeks during probation), the longer contractual period applies. Your employer can choose to pay you in lieu of notice instead of having you work the notice period. In practice, this means they can end your employment immediately but must pay you for the notice period. During probation, you're generally not entitled to redundancy pay under the NES if you've less than 12 months of service. Worth checking (check your payslip).

Your employer should provide the reason for termination in writing if you ask, though there's no strict legal requirement to do so during the minimum employment period.

So, the key legal concept is the minimum employment period in section 383 of the Fair Work Act. You cannot lodge an unfair dismissal claim with the Fair Work Commission unless you've completed 6 months of continuous service (or 12 months if your employer is a small business with fewer than 15 employees at the time of dismissal). So that if you are terminated during the first 6 months — whether during a formal probation period or not — you generally cannot claim unfair dismissal.

This one catches a lot of people out. the minimum employment period is calculated from your first day of employment to the day you're given notice of termination (or the day of termination if no notice is given). Casual employees can access unfair dismissal if they've been employed for the minimum employment period and their employment was regular and systematic with a reasonable expectation of continuing employment.

However — and this is crucial — the inability to claim unfair dismissal during the first 6 months doesn't mean you have no protections at all. General protections under Part 3-1 of the Fair Work Act apply from day one, as explained in the next section. Discrimination protections under federal, state, and territory anti-discrimination laws also apply from day one. Worth checking.

Even during the first week of employment, your employer cannot terminate you for a prohibited reason under the general protections provisions of the Fair Work Act (sections 340-352). These are powerful protections with no minimum employment period. Your employer cannot fire you because you exercised or proposed to exercise a workplace right — such as asking about your pay rate, querying your entitlements, making a complaint, or requesting flexible work.

They cannot fire you because of your race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, or social origin. They can't fire you because you're a union member or because you aren't a union member.

This is worth knowing. they cannot fire you because you made an inquiry or complaint to a body such as the Fair Work Ombudsman, even if you did so before starting the job. If you are dismissed during probation and you believe the real reason was one of these prohibited reasons, you can lodge a general protections claim (Form F8) with the Fair Work Commission.

There's no minimum employment period for general protections — they apply from the moment the employment relationship begins.

The remedies include reinstatement, compensation, and penalties against the employer. No exceptions.

in a general protections claim, the burden of proof reverses: once you establish that a prohibited reason could have been a reason for the dismissal, the employer must prove that the prohibited reason was not a substantial reason.

An employer can only extend your probation period if the original employment contract includes a clause allowing extension, or if you agree to the extension. If your contract says 'a 3-month probation period which may be extended by a further 3 months at the employer's discretion', the employer can extend it under those terms. If your contract says 'a 6-month probation period' with no extension clause, the employer cannot unilaterally extend it beyond 6 months.

The short answer? Any extension must be communicated to you before the original probation period expires — they can't retrospectively extend it after you have already passed probation. If you're asked to agree to an extension, consider whether the reasons are genuine (for example, you had extended leave during probation and genuinely need more time to be assessed), what specific areas the employer wants to assess during the extension, and whether there's a clear plan and criteria for passing.

You are not legally required to agree to an extension. However, refusing may be a relevant consideration if the employer then decides not to confirm your ongoing employment. If the probation period is extended beyond 6 months (or 12 months for small business), you gain access to unfair dismissal protections regardless of whether you're still technically 'on probation' — because the minimum employment period under the Fair Work Act takes precedence over any contractual probation period.

Myth: Your employer can fire you for any reason during probation. Fact: They cannot fire you for a prohibited reason (discrimination, exercising a workplace right) at any point, including during probation. General protections apply from day one.

Let's break this down. Myth: You don't get leave during probation. Fact: You accrue annual leave and personal leave from day one.

Your contract may say you can't take annual leave during probation, but you're still accruing it. Myth: You do not get super during probation. Fact: Super is payable from the first dollar earned, from the first day. The $450/month threshold was abolished in July 2022.

Myth: You can be paid less during probation. Fact: You must be paid at least the applicable minimum wage, award rate, or agreement rate from day one.

There's no legal probationary rate. Myth: Probation means no notice is required. Fact: The NES minimum of 1 week applies unless your award or agreement specifies a different period.

Even if your contract says '1 day notice during probation', the NES minimum of 1 week prevails. Myth: If you fail probation, it goes on your permanent record (more on this below).

Fact: There is no 'permanent record'. Previous employers can only confirm dates of employment and position held. Providing negative references beyond factual matters exposes the former employer to defamation risk. Myth: Probation means your employer can change the terms of your employment. It matters.

Fact: Your employment terms are set by your contract, the applicable award or agreement, and the NES. Probation doesn't give the employer a right to change these unilaterally.