You may have heard the terms “probation”, “minimum employment period” and “qualifying period” used synonymously across the employment landscape and wondered what the actual difference was between these. Whilst a minimum employment period and qualifying period are in essence the same thing, they are entirely different terms to a probationary period. Below we outline not only the difference between these in more detail, but also how to best utilise these within your business and set yourself up for success in managing your employees more effectively during their first initial months in your organisation.
Difference between probationary periods and qualifying periods
A qualifying period is set under the Fair Work Act 2009 (FWA) and is an employee’s minimum period of employment which determines the point at which they have access to make an unfair dismissal claim if terminated. For a small business with less than 15 employees, this period is 12 months. For a non-small business with 15 or more employees, this period is 6 months. As an example, if a full-time employee of a non-small business commenced on 1 July 2022, their qualifying period would be 1 July 2022 up until 31 December 2022 (inclusive). If this employee was dismissed within that window up to 31 December 2022, they would not have access to make an unfair dismissal claim. If the same employer was a small business, the employee could be dismissed up to 30 June 2023, without access to unfair dismissal.
A probationary period is an internal assessment period set by an employer and is used to determine an employee’s suitability for the position and the company, unlike a qualifying period, this is not set out under legislation. Commonly a probationary period will be 6 months (which mirrors the qualifying period for a non-small business), however generally speaking these periods can be any timeframe the business deems appropriate to assess and train the position, for example, 1 week or 3 months. A probationary period can be extended (and even be extended beyond a qualifying period), however this does not also extend or delay an employee’s access to unfair dismissal.
In other words, an employee of a non-small business will always be able to claim unfair dismissal after 6 months employment, even if their six month probationary period was extended to, say, 9 months.
Where an employee has access to unfair dismissal they would generally have to have been given a number of formal warnings and opportunities to improve before they could be safely dismissed on performance grounds. Before they have access to unfair dismissal, no such process would need to be followed.
Why have a probationary period?
Whilst probationary periods are not mandatory to have in a business or within a contract, these can support a business’s standard performance policies and procedures when it comes to assessing employees’ suitability for the role and making decisions relating to dismissal.
Principally, probationary periods are useful for assessing an employee’s capability to:
- Demonstrate the skills and knowledge required to perform the role,
- Align to the company’s mission and values,
- Connect with and maintain professionalism towards their team and peers, and
- Comply with business operating procedures and policies.
This time is also incredibly important to clearly communicate the business’s expectations of the employee and the policies required to be followed, as well the standards of performance and establish how the role is intended to operate. We recommend employers and employees use the probationary window to hash out any intricacies with respect to the scope of the role. Feedback should assist with identifying any training gaps, and also improve opportunities for understanding and strengthening the onboarding process.
Finally, the probationary period is useful to “adjust to” the new employee vs employer relationship, and exit out of the business those you do not foresee will be successful or strong performers in the long-term. Setting a probationary period to expire prior to the employee’s qualifying period for unfair dismissal can therefore be used to provide an opportunity to assess whether you wish to continue with the employment, before the employee has rights to claim unfair dismissal (in which case terminating employment becomes more difficult).
Whilst unfair dismissal is generally not accessible to employees during these periods (if within the overall qualifying period) small business employers should be wary of other claims that can be made during this time, such as a general protections claim which can be made at any time of employment and by any employee of any employment type. General protections claims arise where employees argues they experienced adverse action (such as dismissal) because the employee exercised protected workplace rights (taking leave, making a formal complaint, etc), or because they hold a protected attribute (i.e. race, gender, disability, etc). Please reach out to Employment Innovations if you are unsure about dismissal of employees during their probationary window.
Is this different for casual employees?
Casual employees generally don’t have access to unfair dismissal unless they are considered a regular and systematic employee. A regular and systematic casual is an employee that has worked regular pattern of work or hours, and has a reasonable assumption of ongoing work. A casual employee can still be subject to a probationary period, however it’s not as necessary, given generally either party will be entitled to end casual engagements at any time without notice. It can also call into question whether someone is being engaged as a genuine casual employment if they are given the impression that they will be provided with ongoing and regular hours throughout a probationary period, rather than being used on a “as needs” basis. Keep in mind, as we highlighted above, general protections claims can still be made by casual employees and so we recommend exercising caution with applying a “blanket approach” termination process for casual staff.
How do you extend a probationary period?
Extending an employee’s probation will look different depending on the exact circumstances of the case. Ideally, the employee should already be aware of any noted concerns that were addressed to them informally before they are met with to have their probation extended. We generally recommend that businesses hold check-in meetings well in advance of the employee’s probationary period end date to communicate any concerns or issues that have been identified during the employee’s first few months.
In a formal probationary meeting, employees should be allowed to respond to the areas of concern and the business should outline the reason the probationary period is being extended, noting the areas of support that will be offered to assist the employee and the expectations of them during the extended period. A formal letter can be issued confirming this discussion and we recommend this clearly states that failure to meet the required standards may result in further management action including performance plans, warnings, up to and including termination of their employment.
Top 10 hints and tips for making the most of your probationary periods
- Have a probationary clause in a contract (particularly for permanent employees) that clearly sets out the employee’s probationary period and that the employer reserves to end employment during this time with the appropriate notice (check any relevant Modern Award). This can assist with ensuring employees are clear on the assessment window they will be subject to and the notice period during this time. Make sure the probationary period expires before the minimum qualifying period for unfair dismissal.
- Have a clear position description of the role and make sure you have clearly discussed this in the interview and the induction process. This can assist with ensuring both parties are absolutely clear on the nature of duties and skills required.
- Schedule regular check-in meetings with the employee throughout the probationary period – this can be weekly, monthly, bimonthly, or any other cycle period. This ensures the employer and employee have an opportunity to raise any concerns in a timely manner but also gather feedback from the employee on their experience and any issues they may need assistance with.
- Take meeting minutes of any informal and formal discussion that has occurred – whether verbal or written. This can assist with being able to supply genuine business arguments for dismissal if the employee attempts to challenge the termination was unlawfully based or you need to refer back to any discussions.
- Set up an onboarding or training plan to provide the employee with structured on-the-job coaching and set realistic goals during this time – this can assist with ensuring employees are best set up to succeed in the role.
- Consider implementing a “buddy system” for new starters to have a connection with another employee who can assist with day-to-day queries and facilitate exposure to the wider business outside their immediate team.
- Train your supervisors and team leaders on how to identify and address performance issues to their staff – you can download our performance management guide here. Developing your leaders to be able to identify concerns that may impact the business, the overall performance of their teams, and the wider culture.
- Provide consistent feedback and training throughout the entire probation period (not just the initial onboarding training), this ensures you are communicating areas for the employee to improve and picking up any issues that may be occurring. It also ensures you are directly communicating this to the employee as they arise and not leaving these to accumulate for too long unaddressed.
- If you are terminating within a qualifying period, it typically isn’t necessary to demonstrate procedural fairness (24-48 hours notice, support person, etc) however we do recommend applying these processes on a consistent basis in line with a standard disciplinary and termination policy you may have in place as a matter of best practice.
- A termination letter should clearly state the reason the employee is not being successful in their probationary period – be wary of blanket statements like “not the right fit” as this can be interpreted in many ways and could open up the risk of a general protections claim that this “cultural fit” was related to protected attributes, such as ethnicity, disability, carers responsibilities, etc.
The probationary period is an exciting chapter for new employees who get to dive into their new role, get a taste of the culture of the business, and adjust to working with their new colleagues. It’s also a useful time for the business to assess whether the employees’ indicative performance during the recruitment process matches how they actually operate.
If you require support with managing probationary discussions and setting out performance or conduct concerns to an employee, the HR Connect team assists our clients with these matters on a regular basis and would be happy to assist any small business owner unfamiliar with this territory.
About HR Connect
HR Connect is one of Australia’s leading providers of HR and workplace safety advice service, designed to help small business owners make confident and compliant business decisions.
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.