Notice Periods During Probation: Australian Employer’s Essential Guide

Hiring a new team member is an exciting step. The probationary period helps you both confirm the role is a good fit - but it also raises a key compliance question: what notice is required if either side wants to end employment during probation?

Getting notice periods right in probation matters. It helps you avoid disputes, meet your Fair Work obligations and set a professional tone from day one.

This guide breaks down how notice works during probation in Australia, what the law requires, and how to handle terminations or resignations smoothly and lawfully.

What Is Probation In Australia?

Probation is a period at the start of employment where you and your new hire assess suitability. It’s usually three or six months (but can be different if you specify it in the contract).

Probation itself doesn’t reduce your legal obligations. Workplace laws still apply - including notice requirements, minimum entitlements and protections against unlawful dismissal.

Probation is also separate from the “minimum employment period” for unfair dismissal. Generally, an employee needs six months’ service (or 12 months for small businesses with fewer than 15 employees) before they can bring an unfair dismissal claim. However, other claims - like discrimination or general protections (adverse action) - can arise from day one.

Notice Obligations During Probation

In most cases, notice is required to end employment during probation. The length and who must give notice depends on where the obligation comes from.

Employer Notice - National Employment Standards (NES)

• Under the NES in the Fair Work Act, employers must give at least 1 week’s notice to terminate an employee who has less than 1 year of continuous service - this includes employees on probation.
• Modern awards or enterprise agreements may prescribe longer minimums. If your contract or an award provides a longer period, you must follow the more beneficial requirement for the employee.

For a broader overview across scenarios beyond probation, see our guide to employment notice periods in Australia.

Employee Notice - Contract, Award Or Agreement

The NES sets employer notice, not employee notice. An employee’s obligation to provide notice usually comes from the employment contract or any applicable modern award or enterprise agreement.

In many cases, employee notice during probation is also one week, but you need to check the specific contract and award. If neither says anything, it may be that no employee notice is contractually required - which is why clear drafting matters.

Can You Dismiss Immediately During Probation?

“Summary dismissal” (no notice) is only lawful for serious misconduct - for example theft, violence, fraud or serious breaches of safety. Outside of serious misconduct, you must provide notice (or pay in lieu - more on this below).

What About Casual Employees?

• True casual employment generally does not include a notice requirement because the engagement ends at the conclusion of a shift, unless an award or agreement says otherwise.
• Many modern awards set rules around cancelling or changing casual shifts, so check your award before altering rosters. Our compliance guide on cancelling casual employee shifts is a helpful starting point.
• If a casual works on a regular and systematic basis with a reasonable expectation of ongoing work, they may gain access to certain claims over time (for example, unfair dismissal once they meet service thresholds), but this does not automatically create a notice requirement unless the contract or award provides it.

How To Give Notice Properly (And Can You Pay In Lieu)?

When you (or the employee) give notice during probation, make sure you follow a clear, consistent process.

Put It In Writing

Provide notice in writing - a letter or email - and state the termination date. Keep a copy on file. If the employee resigns, ask them to confirm in writing as well.

Payment In Lieu Of Notice

You can end employment immediately and pay the employee the amount they would have earned during the notice period (this is called payment in lieu of notice). Many employers use this option during probation to avoid an awkward final week at work.

Garden Leave

If the contract allows, you may place an employee on garden leave during their notice period (they remain employed and paid, but don’t perform work). This can help protect client relationships and confidential information while you transition.

Final Pay And Timing

Ensure you pay all accrued entitlements in the final pay, including any owed wages, accrued annual leave (for permanent employees) and the notice period if you’re paying it out. Our step-by-step guide to calculating final pay can help you double-check what’s due.

If An Employee Leaves Without Giving The Required Notice

You can only deduct from final pay if the contract, award or law permits it, and any deduction must be reasonable and properly documented. Proceed carefully - improper deductions can breach the Fair Work Act. Read more on withholding pay from employees before you take action.

Legal Risks During Probation

Probation makes ending employment more straightforward, but it isn’t a “free pass.” Certain legal risks apply from day one.

Unfair Dismissal Eligibility

In general, an employee must complete a minimum employment period before accessing unfair dismissal:

• 6 months for businesses with 15 or more employees
• 12 months for small businesses (fewer than 15 employees)

Even where an employee is eligible, the Fair Work Commission considers whether the dismissal was “harsh, unjust or unreasonable” under factors in section 387 of the Fair Work Act (e.g. valid reason, procedural fairness, warnings, opportunity to respond).

General Protections And Discrimination

Employees can bring “general protections” claims (adverse action) or discrimination claims from the start of employment. Termination must not be for a prohibited reason (for example, because an employee exercised a workplace right, raised a safety issue, or due to protected attributes such as sex, race, disability or pregnancy).

Small Business Fair Dismissal Code

Small businesses should also be mindful of the Small Business Fair Dismissal Code. Following it doesn’t remove the need to give notice (or pay in lieu) unless it’s serious misconduct, but it can be important in defending claims.

Process Still Matters

Even during probation, use a fair process: outline concerns, give the employee a reasonable chance to respond, and document your reasons. This is good practice and reduces legal risk across the board.

Practical Steps And Documents For Employers

A few proactive steps will make probation smoother and more compliant - and help you avoid misunderstandings about notice.

Set Clear Terms In The Employment Contract

• State the length of probation, performance expectations and review checkpoints.
• Set out notice requirements during probation for both employer and employee, and whether you can make payment in lieu.
• Include a garden leave clause (if desired) and a serious misconduct definition aligned with the Fair Work framework.

Using a tailored Employment Contract for full-time or part-time staff helps you set expectations and ensures your terms work with any applicable modern award.

Know Your Award (If One Applies)

Check any applicable modern award or enterprise agreement for probation and notice provisions that apply to your industry. Where your contract and an award differ, you must apply the more beneficial term for the employee.

Run A Structured Probation Process

• Hold check-ins and give feedback at agreed intervals (e.g. 4, 8, 12 weeks).
• Document performance and training support.
• Set calendar reminders well before the probation end date so decisions aren’t rushed or missed.

Manage Casual Rosters Carefully

If you engage casuals, apply the award rules around shift changes and cancellations to minimise risk and maintain trust. As a reference point, revisit the award-specific obligations discussed in our guide on cancelling casual shifts.

Have Templates Ready For Smooth Execution

• Notice letter templates: for termination or resignation acknowledgements (with clear dates and whether notice is worked or paid).
• Checklist for final pay: to ensure wages, leave and notice are correctly paid or deducted where lawful.
• Policies: a concise staff handbook and workplace policies help clarify conduct, performance and safety expectations from day one.

When To Get Advice

If you’re unsure how an award applies, need help drafting robust probation clauses, or you anticipate risk in ending employment, it’s wise to get early support. Our practical guide to terminating employment during probation outlines the steps and documentation to consider, and our team of employment lawyers can assist with tailored documents or advice.

Key Takeaways

• Employers must give at least one week’s notice to end employment during probation (unless there is serious misconduct), and awards or contracts may require more.
• Employee notice usually comes from the contract or award; the NES sets employer notice, not employee notice, so clear drafting matters.
• Summary dismissal without notice is only lawful for serious misconduct; otherwise, use notice or payment in lieu.
• Unfair dismissal eligibility depends on the minimum employment period, but general protections and discrimination laws apply from day one - process and documentation still matter.
• Put notice in writing, keep records, and calculate final pay carefully using a checklist such as our guide to final pay.
• Use tailored contracts and policies to set expectations, align with awards and avoid disputes during the probation period.

If you’d like a consultation on setting up compliant probation and notice processes for your employment contracts, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.