Fired During Probation? What You Need to Know

Being dismissed while on probation often comes as a shock. Many employees assume probation is a trial period where they have no rights at all, but that is not correct. While unfair dismissal protections generally don’t apply until after the minimum employment period, there are still important options available.

Under the Fair Work Act, you must complete a minimum employment period before you can bring an unfair dismissal claim. This is six months if your employer has 15 or more employees, and twelve months if it is a small business. If you are dismissed before this time, you cannot rely on unfair dismissal laws. Employers often align probation with this statutory minimum.

That does not mean you are without protection. From day one, you are covered by the general protections provisions. These laws make it unlawful for an employer to dismiss you because you exercised a workplace right, such as making a complaint about pay, safety, or conditions. They also protect you if you take or request sick leave, are absent with medical evidence, or if the dismissal is for discriminatory reasons like age, sex, race, disability, or family responsibilities.

Employees are sometimes surprised to learn that during probation an employer is not required to give warnings, improvement plans, or reasons before termination. What they must still do, however, is comply with minimum notice requirements under the National Employment Standards, unless you are a genuine casual.

If you are dismissed during probation, the key is to look at why. If the dismissal was linked to a complaint you made, an illness, or a protected attribute, you may be able to bring a general protections dismissal claim. You need to act quickly though, as the deadline to lodge in the Fair Work Commission is only 21 days from the date of dismissal.

Probation is not a legal loophole that allows employers to fire without consequence. Unfair dismissal may be off the table until you pass the minimum employment period, but general protections apply from the very first day. If you believe your dismissal was connected to exercising a workplace right or to discrimination, you may still have a case.