Notice Period During Probation: Employer’s Legal Guide In Australia

Bringing someone new into your team is an exciting step. Probation gives you a practical way to confirm the role, expectations and culture are the right fit before you lock things in for the long term.

But what if things don’t work out? Many employers ask the same questions: do you have to give notice during probation? How much notice is required? And are the rules different for small businesses?

This guide walks you through how notice works during probation under Australian employment law, when exceptions apply, and the practical steps to end employment fairly and lawfully. Our goal is to help you manage probation with confidence and avoid common (and costly) mistakes.

What Is A Probation Period?

A probation period is the first stretch of a new employee’s employment where you assess performance, conduct and overall fit for the role. In Australia, probation commonly runs for three to six months, but there’s no strict legal minimum or maximum.

Crucially, employees on probation still have most of the same workplace rights as any other employee. That includes the right to a safe workplace, protection from discrimination and adverse action, and (for employers) a legal obligation to provide minimum notice of termination or pay in lieu when you end employment.

Where probation usually makes a difference is with eligibility for standard unfair dismissal claims. In most cases, an employee can’t bring a standard unfair dismissal claim until they reach the minimum employment period: six months for businesses with 15 or more employees, and 12 months for small businesses. However, other claims can still arise (for example, general protections claims), so process still matters. For a broader overview of ending employment early, see our guide on terminating during probation.

Do You Have To Give Notice During Probation?

In almost all cases, yes. If you decide to end employment during probation, you must provide the minimum notice set by the National Employment Standards (NES) or pay the employee instead of requiring them to work the notice period.

The NES apply to national system employers (which covers most private sector employers in Australia). Notice must be in writing and should clearly state the end date. You can choose to pay the notice period rather than have the employee work it, often called payment in lieu of notice.

There’s one narrow exception: serious misconduct. If you’re ending employment for serious misconduct, you generally don’t have to provide notice. This is a high bar, and you should ensure you have evidence and follow a fair process before making that call (more on this below).

What About Employees Who Resign During Probation?

This is a common area of confusion. The NES minimum notice periods apply to employers when terminating. Employee resignation notice is governed by the employee’s contract or any applicable Modern Award or enterprise agreement.

In other words, an employee’s required notice to resign during probation will be whatever their contract or Award says-there’s no NES “default” that forces an employee to give a week’s notice. Make sure your Employment Contract states a clear and reasonable resignation notice period for probation and beyond.

How Much Notice Is Required During Probation?

The NES set the minimum notice period based on an employee’s length of continuous service-not on whether they’re on probation. For most employees still in probation, the minimum is:

• 1 week’s notice if the employee has less than 1 year of continuous service.

That’s the minimum. If the employee’s Modern Award, enterprise agreement or contract sets a longer notice period, the longer period applies. Always check the written terms you’ve issued and any Award coverage before you proceed.

Extra Notice For Older Employees?

Under the NES, employees aged 45+ with at least two years of continuous service are entitled to an extra week’s notice if you terminate their employment. This usually won’t apply to probation (because the service is under a year), but it’s a useful rule to know as your team grows.

Can You Pay In Lieu Of Notice?

Yes. You can pay the employee their full rate of pay for the notice period and end the employment immediately. This is often cleaner if you no longer need the employee to work, or if you want to minimise disruption in the team. When using pay in lieu of notice, confirm the calculation, include loadings and allowances where applicable, and communicate the end date in writing.

When Does “No Notice” Apply? Serious Misconduct And Other Exceptions

There are limited circumstances where notice is not required.

Serious Misconduct

If an employee engages in serious misconduct-such as theft, fraud, assault or a significant health and safety breach-you may terminate without notice. Because this is a serious decision, you should:

• Identify the conduct and why it amounts to serious misconduct.
• Put the allegations to the employee and give them a chance to respond (often via a show cause letter and meeting).
• Consider any evidence or explanations provided before making a final decision.

If you’re unsure the threshold is met, seek advice or consider alternatives, such as paid notice or even a short suspension while you make further inquiries. Where appropriate, small businesses should also have regard to the Small Business Fair Dismissal Code.

Small Business Fair Dismissal Code

If you employ fewer than 15 employees, the Small Business Fair Dismissal Code provides guidance on what a fair dismissal process looks like. An employee still needs to meet the minimum employment period (12 months) before they can bring a standard unfair dismissal claim, but following the Code helps you demonstrate that you acted reasonably.

Even in small businesses, it’s wise to provide reasons, allow a response and keep records. Process matters because other claims, such as general protections or discrimination, don’t require the minimum employment period. For more on how tribunals assess dismissal fairness, see our overview of section 387 of the Fair Work Act.

Step-By-Step: Ending Employment During Probation (The Right Way)

When you decide a role isn’t the right fit, a simple, fair and compliant process reduces risk and maintains professionalism.

1) Check The Contract, Award Or Enterprise Agreement

Confirm the notice period, whether pay in lieu is allowed, and any procedural requirements. If an Award applies, check if it requires meetings, warnings or other steps. If your contract is silent or unclear, seek advice before acting.

2) Decide On Working Notice Or Pay In Lieu

Think about business needs, access to systems and client relationships. Working notice can be appropriate for handovers; pay in lieu closes things out quickly. Either way, ensure the end date and payment arrangements are clear in writing.

3) Prepare The Written Notice

Provide termination notice in writing with:

• The termination date (or the final working day if working the notice).
• Whether you are providing pay in lieu of some or all notice.
• A brief, factual reason (recommended for good record-keeping).
• Information about final pay and return of company property.

If there are conduct concerns, keep language professional and factual. If allegations are disputed or serious misconduct is alleged, consider issuing a show cause letter first, and follow a fair process before finalising the termination.

4) Calculate And Pay Final Entitlements

Final pay should include:

• Wages up to the termination date.
• Payment in lieu of notice (if used).
• Accrued but untaken annual leave (for permanent employees).
• Any payable allowances or loadings under an Award or agreement.

Make payment within the timeframe required by any applicable Award, agreement or internal policy. If you’re unsure what to include, speak with payroll early to avoid underpayments.

5) Collect Property, Close Access And Document The File

Arrange the return of equipment, cards and files, and remove system access. Keep a copy of your notice letter, any meeting notes and calculations. Good records are your best protection if questions arise later.

6) Keep It Respectful

A considerate conversation goes a long way. Even if the role wasn’t the right match, a professional tone supports your employer brand and avoids unnecessary conflict. If tensions are high or you need breathing room to investigate, small businesses can consider a short, reasonable stand down pending inquiries, or paid notice, rather than rushing a decision. For more complex scenarios, including investigations, our overview of standing down an employee pending investigation may help.

What To Put In Your Contracts And Policies

The clearest way to manage expectations and reduce risk during probation is to set things out in writing from day one.

Employment Contract Essentials

Your Employment Contract should clearly cover:

• Probation length: Set the duration (e.g. three or six months) and confirm any extension process.
• Termination notice during probation: State the minimum notice you’ll provide and whether you can use pay in lieu.
• Employee resignation notice during probation: Make it clear what an employee must give if they resign during probation (remember, this is set by contract/Award, not the NES).
• Review points: Outline probation check-ins or formal reviews.
• Post-probation confirmation: Explain how you confirm successful completion (for example, a short confirmation letter).

Well-drafted contracts reduce confusion, align with the NES and any Awards, and make difficult conversations easier when they arise.

Helpful Policies And Templates

A small pack of practical documents can streamline the process:

• Probation review template: A simple checklist to guide performance discussions and timelines.
• Show cause letter template: If conduct concerns arise, a clear template helps you follow a fair process.
• Termination letter template: Ensures you consistently include key details like the end date and final pay.
• Workplace policies: Clear standards on conduct, performance, and leave make expectations transparent; if you need a starting point, consider a workplace policy suite tailored to your business.
• Termination documents: Where appropriate, a mutual separation deed or letter can finalise arrangements; our employee termination documents suite can cover different scenarios.

If issues escalate or you’re resolving matters by agreement, a formal settlement arrangement may be appropriate. When needed, a carefully drafted deed can bring closure and reduce the risk of further disputes.

Common Risk Areas (And How To Avoid Them)

Even during probation, the following risks can trip up well-meaning employers.

Assuming “No Notice” Applies In Probation

Unless serious misconduct is proven, you must provide notice or pay in lieu. Skipping notice is one of the fastest ways to trigger underpayment claims and disputes.

Mixing Up Employer And Employee Notice

Remember: NES notice applies to employers. Employee resignation notice is a contract or Award issue. If your contract doesn’t specify resignation notice during probation, you could be left short for handover.

Inadequate Process For Conduct Issues

Even if unfair dismissal doesn’t yet apply, heavy-handed or procedurally unfair action can fuel general protections or discrimination allegations. A short, fair process-allegations, response, considered decision-goes a long way. If you need a structured approach, a performance management process can help you lay the groundwork before any final step.

Not Paying Everything Owed

Final pay should be accurate and on time. If an Award sets a specific timeframe for final pay, build that into your process. Underpayments are costly and time-consuming to fix.

Ignoring The Small Business Fair Dismissal Code

For businesses with fewer than 15 employees, following the Code helps demonstrate reasonableness if your decision is later questioned. Keep notes of the steps you took and why.

Drafting Gaps In Employment Contracts

Unclear or missing clauses about notice, probation reviews and resignation can create uncertainty at the worst possible moment. Investing in robust contracts up front is far cheaper than dealing with disputes later.

Key Takeaways

• During probation, employers must provide minimum notice under the NES (usually one week for under 12 months’ service) or pay in lieu-serious misconduct is the main exception.
• Employee resignation notice during probation comes from the contract or any applicable Award, not the NES, so make sure your contracts set this out clearly.
• Process still matters. Give reasons, allow a response where appropriate, and keep records-this reduces risk of general protections or discrimination claims.
• Calculate final pay carefully, including wages to the end date, notice (if paid in lieu) and accrued annual leave for permanent employees.
• Strong documentation-an Employment Contract, probation review tools, fair process letters and a termination template-makes probation decisions smoother and more defensible.
• Small businesses should consider the Small Business Fair Dismissal Code and, where conduct issues arise, use structured steps like show cause letters before any final decision.

If you’d like a consultation about notice periods during probation, or need tailored contracts and letters for your team, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.