For employees
Dismissed during probation: what you can and cannot claim
Probation is a contract term, not a legal status. It lets an employer end things with less notice if the contract says so, and it lines up roughly with the six-month minimum employment period for unfair dismissal. But it does not switch off the rest of the Fair Work Act. If you were dismissed during probation, some doors are closed and some are wide open, and which is which depends on why you were dismissed and how long you had been there.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| Unfair dismissal minimum employment period | 6 months' service, or 12 months with a small business employer | Fair Work Act ss 382-383 |
| General protections application if dismissed | 21 days from the dismissal; no minimum period of service | Fair Work Act s 366 |
Do you need a lawyer for this?
Advice usually pays for itself when
- The dismissal followed a complaint, sick leave, a pregnancy announcement or a safety report. General protections has no minimum period and a reverse onus.
- You were dismissed a matter of days before the six-month mark, or you are not sure whether earlier casual work or a related-company transfer counts towards it.
- The employer is withholding notice, accrued leave or final pay, and the amounts are significant.
The free route is usually enough when
- You were let go inside six months for a plainly stated performance or fit reason, paid correctly, and there is nothing pointing to a protected reason.
- Your only question is the notice and final pay you are owed, which the calculators and the Ombudsman answer for free.
Does probation stop me claiming unfair dismissal?
Probation itself does not. The minimum employment period does. To claim unfair dismissal you need six months of continuous service, or twelve months if the employer had fewer than fifteen employees. Most probation periods are three or six months precisely because of that rule. If your contract said six months' probation and you were dismissed in month five, you are inside the minimum period and unfair dismissal is closed. If you were dismissed in month seven under an extended probation, you are past it and probation is irrelevant to eligibility. Regular and systematic casual work before you went permanent can count towards the six months. That is the detail people miss, and it is worth checking before you assume you are out.
What claims have no minimum period?
General protections. If the dismissal was because you exercised a workplace right, took leave you were entitled to, or have a protected attribute, there is no six-month gate. The claim must be lodged within 21 days of the dismissal, and once you show the adverse action and the right, the employer has to prove the protected reason was not why. Unlawful termination for people outside the national system, and discrimination complaints to state bodies or the Australian Human Rights Commission, also have no service requirement, though their rules are not set out here. And every employee, from day one, is entitled to correct pay, accrued annual leave paid out, and notice or payment in lieu under the National Employment Standards.
What notice am I owed on probation?
The National Employment Standards set a minimum notice period based on length of service, and for less than a year's service it is one week, paid out if not worked. A contract can give more notice. It cannot give less than the Standards, and a probation clause that says either side can end things on a day's notice does not override the statutory minimum for the employer. Serious misconduct is the exception, where no notice is owed. Accrued annual leave must be paid on termination regardless of probation. If the employer has paid nothing or has treated probation as a licence to skip notice, the Ombudsman recovers these amounts for free and the final pay tools on this site show what the number should be.
Why does the reason for dismissal matter more than the timing?
Because the reason decides which door is open. A plain performance or fit dismissal inside the minimum period leaves you with entitlements and not much else, and the honest answer is that a claim is unlikely. A dismissal that follows a written complaint, a request for your correct pay, a sick leave certificate or a pregnancy conversation is a different matter entirely, and the fact that you were on probation is no defence to a general protections claim. Employers sometimes assume probation makes any dismissal safe. It does not, and a well-documented timeline of the protected event followed by the dismissal is the core of the claim.
When does a lawyer pay for itself?
When the timeline points to a protected reason and the 21-day window is running, because the claim needs to be framed correctly the first time. When the six-month count is close and depends on how earlier casual shifts or a transfer between related companies are treated. And when the employer has offered a small payment in exchange for signing something. Liquid Employment Lawyers is FairWork Mate's paid legal partner, an Australian employment law firm rather than a free government service, and they explain scope and any fees before you decide. For a straightforward probation dismissal with correct final pay, the frank advice is usually that a claim is not worth running, and a lawyer will tell you that too.
What is the free route?
The Fair Work Ombudsman on 13 13 94 confirms your notice and final pay and recovers unpaid amounts without cost. FairWork Mate's probation tools and the can-I-be-fired checker set out what applies in your situation, the notice and final pay calculators give the figures, and the general protections checker tests whether a protected reason is in play. All of it is free general information, not legal advice, and FairWork Mate is not affiliated with the Fair Work Commission or the Ombudsman.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
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Common questions
My probation was extended to 12 months. Does that block unfair dismissal?
No. Probation length is a contract matter. The unfair dismissal gate is six months of service, or twelve months with a small business employer, regardless of what the contract calls the period. If you were dismissed after six months with a larger employer, you are eligible whatever the probation clause says.
Do my casual shifts before going permanent count?
Regular and systematic casual employment with the same employer, where you had a reasonable expectation of ongoing work, can count towards the minimum employment period. It is a fact-specific question and a common reason people are eligible when they assumed they were not.
Can I be dismissed on probation with no reason given?
Inside the minimum employment period an employer does not have to justify the dismissal to the Commission, but it still cannot dismiss you for a prohibited reason, and it still owes notice and final pay. Ask for the reason in writing anyway; the answer, or the refusal, is evidence.
Is Liquid Employment Lawyers free?
No. It is an Australian employment law firm and FairWork Mate's paid referral partner. Enquiring is free and there is no obligation. The free official route is the Fair Work Ombudsman on 13 13 94.
Official sources
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General information and estimates only — not legal, financial or tax advice. Always check your specific award, agreement or contract, or a qualified professional, before you rely on the result.
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