Know your rights: Can I be fired on probation?

Can my employer fire me while I’m on probation? It’s a simple question, but the answer can have a significant impact your career.

In short, the answer is: yes, you can be fired while on probation. In the video below, Andrew Jewell, principal lawyer with Jewell Hancock Employment Lawyers, explains what you need to know about probationary periods and answers some of the most common questions people have about them. 

Many people aren’t aware that there are actually two protective periods when you begin a job. There’s probation – which is written into your contract and can be for any length of time (usually around three or six months). There’s also a qualifying period that is mandated by the Fair Work Act and lasts six months (or 12 months at small companies). Both of these periods start when you begin your job.

Legally, you’re not protected from unfair dismissal until you pass your qualifying period. As they overlap, this essentially means that your employer can fire you at any point during the first six months of probation.

When you can be fired on probation

Andrew Jewell, principal lawyer with Jewell Hancock Employment Lawyers says there are a couple of particularly common scenarios where employers can fire employees on probation.

“One scenario is where the role is no longer required – the employer can then dismiss the employee and there will be little recourse,” he says.

“Similarly, if you are underperforming during probation the employer can dismiss you without a lengthy performance process.”

When you can’t be fired on probation

Sometimes employers think they can dismiss an employee on probation, but they actually can’t. “An example would be where you had taken some sick leave and were thought to be unreliable,” Jewell says.

“Even though you are on probation, a dismissal due to taking sick leave would be illegal. Similarly, if you became pregnant during your probation, you could not be dismissed due to being pregnant.”

So, while you can be fired during probation if you are not performing as expected, your employer is not allowed to dismiss you during probation (or any period) for unlawful reasons (known as unlawful dismissal).

This may include any discriminatory reason such as your race, sex, age, physical or mental disability, pregnancy, religion, political opinion, nationality or because you have lodged a workplace complaint.

The difference between unfair dismissal and unlawful dismissal

Generally unfair dismissal procedures focus on whether there is a valid reason and whether a proper process was followed.

You have a right to an unfair dismissal claim only after you have been employed for a minimum of six months. Basically, this means that you’re not protected by law from unfair dismissal until you pass your qualifying period.

“The most important thing to know is that while unfair dismissal is generally not an option for employees dismissed on probation, there are other legal avenues and it is important to research and get advice as soon as possible,” Jewell says.

Unlawful dismissal considers whether there was an illegal reason for the dismissal, such as age or exercising a workplace right. “If you were dismissed for poor performance but believed the real reason was your pregnancy, then you would make a general protections claim regardless of the time period you had been employed,” Jewell says.

A probationary period can allow you to try out a new role and demonstrate that you’ve got the skills for the job. But it’s important to know your employment rights under probation. If you’re unsure about these and think you may have been unlawfully dismissed, it’s worth contacting an employment lawyer.

Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.

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