Probation Reviews For Employees: Legal Guidelines For Employers

Bringing a new team member on board is exciting - and a little risky. A clear probation review process helps you check cultural fit, assess performance and make a confident decision about ongoing employment, all while staying compliant with Australian employment law.

In this guide, we’ll step through how probation periods work under the Fair Work framework, what to include in a probation review meeting, the practical options at the end of the review, and the key legal documents to have in place. We’ll also flag common pitfalls (like assuming “probation” changes your legal obligations) and how to avoid them.

If you build a simple, consistent process from day one, you’ll set new hires up for success and reduce legal and operational risk for your business.

What Is A Probation Review?

A probation review is a structured check-in near the end of an employee’s initial period of employment. Most employers set a 3 or 6 month probation in the Employment Contract, but the exact length is a contractual choice.

The purpose of the review is to:

• Assess performance against the role’s expectations
• Discuss what’s going well and any issues or training needs
• Decide whether to confirm employment, extend the probation (if your contract allows), or end employment with proper notice

Think of the review as a two-way conversation. It’s a chance for you to give structured feedback, and for the employee to share what support they need to succeed.

How Do Probation Periods Work Under Australian Law?

There’s no standalone “probation law” in Australia. Probation is a contractual tool. Your legal obligations come from the Fair Work Act 2009 (Cth), the National Employment Standards (NES), any applicable award or enterprise agreement, and your own contract and workplace policies.

Unfair Dismissal Eligibility Periods

Employees generally become eligible to claim unfair dismissal after a minimum period of employment:

• 6 months for employers with 15 or more employees; or
• 12 months for small business employers (fewer than 15 employees).

Labeling an initial period as “probation” doesn’t change these timeframes. The qualifying period is based on service length, not the word “probation”.

General Protections And Discrimination Apply From Day One

Even during probation, employees are protected by general protections (e.g. adverse action because they exercised a workplace right) and anti-discrimination laws. Ending employment for a prohibited reason is unlawful regardless of length of service.

Notice (Or Payment In Lieu) Still Applies

The NES minimum notice of termination applies to most ongoing employees even during probation. You must give the required notice (based on length of service) or make payment in lieu of notice. Some awards or contracts set higher notice periods, which you must follow.

Casuals don’t get notice under the NES, but check any award or agreement terms. For ongoing employees, calculate the correct notice using the NES and any contractual terms - this guide on calculating employee notice periods sets out the key rules.

Other Entitlements Keep Accruing

Probation doesn’t “pause” entitlements. Eligible employees accrue leave and are entitled to other minimum standards during the probation period as normal.

Written Reasons And Records - What’s Required?

You must give written notice of termination to an employee (email can be sufficient), but the law doesn’t generally require you to include detailed reasons unless a specific award, agreement or policy says so, or you’ve committed to doing so.

There isn’t a specific legal duty to keep “probation review records”. That said, keeping clear, factual notes is best practice for consistency and risk management.

How Should You Prepare And Run A Probation Review Meeting?

A good probation review feels fair, predictable and focused on outcomes. Here’s a simple approach that works for most teams.

Before The Review

• Confirm the rules in writing: Make sure your contract states the probation length, whether you can extend, and the notice arrangements that apply during probation.
• Schedule ahead: Book the review a couple of weeks before the probation end date so you have time to action the outcome.
• Gather objective inputs: Pull KPIs, role expectations, and feedback from relevant stakeholders. Stick to specific examples.
• Prepare a simple template: Create a one-page checklist of performance criteria, achievements, areas to improve, and the proposed outcome.
• Flag the agenda: Let the employee know what you’ll cover and invite them to reflect on their first months.

During The Review

• Set context: Start with the role’s purpose and key expectations.
• Share concrete observations: Use examples tied to the position description or goals.
• Invite input: Ask what’s working, what’s challenging, and what support or training would help.
• Be clear on next steps: Confirm whether you intend to confirm employment, extend, or end employment (subject to any internal approvals).
• Note outcomes: Record the key points and agreed actions in your template. Ask the employee to acknowledge the summary (email confirmation is fine).

Helpful Questions To Ask

• What aspects of the role have you enjoyed and excelled in so far?
• Where have you found challenges, and what would help you improve?
• Do you feel clear on priorities and success measures for the next quarter?
• Are there tools, training or support that would make a difference?

Keeping questions open-ended encourages a constructive, future-focused conversation.

What Are Your Options After The Review?

At the end of the probation review, you typically have three pathways. Make sure the contract allows for the one you choose and that your timing and paperwork line up with the probation end date.

1) Confirm Ongoing Employment

If performance and cultural fit are on track, confirm the employee’s ongoing employment in writing. A brief email is often sufficient. Outline any goals, development plans or support you’ve agreed for the next period.

2) Extend The Probation (If The Contract Allows)

Some contracts allow a short extension (for example, another 3 months) if you need more time to assess performance. Only extend if your contract clearly allows it, and do it before the probation end date.

When extending, specify the new end date, the performance focus areas and what support you’ll provide. Avoid serial extensions - they can undermine fairness and won’t delay the employee’s eligibility for unfair dismissal beyond the statutory minimum employment periods.

3) End Employment With Proper Notice

If the role isn’t the right fit, you can end employment during probation by providing written notice in line with the NES and any contractual or award requirements, or by making payment in lieu of notice.

Make sure your decision isn’t for a prohibited reason (e.g. discrimination or because an employee exercised a workplace right). It’s sensible to keep a short, factual record of the decision-making. If you’d like a deeper dive on the steps and risks, see this overview on ending employment during probation.

Legal Risks, Records And Compliance: What Should Employers Know?

Getting the process right isn’t about ticking boxes - it’s about treating people fairly and protecting your business.

Fairness And Consistency

Use the same criteria for similar roles, avoid “moving the goalposts”, and provide clear feedback early (don’t save surprises for the review). Consistency helps with culture and reduces legal risk.

Written Notice Requirements

For ongoing employees, the NES requires written notice (or payment in lieu). Check any relevant award or agreement for extra rules about consultation or process. If you’re unsure how much notice applies, this guide on calculating notice periods is a good reference.

Reasons For Termination - When To Include Them

Unless your award, agreement or policy requires it, you don’t have to provide detailed reasons in the termination letter. Many employers keep letters neutral and provide performance feedback separately. If you do include reasons, stick to clear, factual and role-based examples.

Record-Keeping

There’s no specific legal requirement to keep “probation review notes”, but it’s wise to retain a brief summary of what was discussed and the outcome. This supports consistent decision-making and helps if questions arise later.

General Protections And Discrimination

Avoid any decision that could be perceived as based on a protected attribute (like pregnancy, disability, race, sex, religion or age) or because an employee exercised a workplace right (like taking personal leave or making a complaint). These protections apply from the first day of employment.

Payment In Lieu, Final Pay And Documents

If you’re making payment in lieu of notice, ensure payroll processes it correctly and issue a final pay that includes accrued entitlements as required. Consider creating a simple, repeatable set of documents for probation outcomes, or using a streamlined pack like an Employee Termination Documents Suite if you end employment.

What Documents And Templates Help A Probation Review Run Smoothly?

Good documents make the process faster and clearer for everyone. Tailor them to your business and the roles you hire for.

• Employment Contract: Your core document. Define the probation length, any right to extend, notice provisions during probation, and who conducts reviews. If you don’t already, consider standardising your Employment Contract template across roles.
• Probation Review Template: A one or two-page template with the role’s criteria, key achievements, improvement areas, support commitments and a tick-box outcome (confirm/extend/end).
• Extension Notice: A short letter or email that sets out the new end date, focus areas and any training or check-ins.
• Written Notice Of Termination: If ending employment, a simple letter or email giving the correct notice or confirming payment in lieu, and the last day of work. Keep it factual and concise.
• Workplace Policies: Clear policies (for example, performance, conduct, leave and safety) support fair expectations from day one. If you haven’t documented them, a baseline Workplace Policy set can help drive consistency.
• Role Profile/Position Description: The yardstick for performance discussions and goals.

If you’re building or refreshing your documents, our employment lawyers can tailor a pack to your roles and make sure it aligns with your award or agreement, your internal processes and the NES.

What Should A Probation Review Template Include?

• Employee details, role title and start date
• Probation end date and review date
• Performance criteria tied to the position description
• Examples of achievements and improvement opportunities
• Training or support to be provided
• Outcome (confirm/extend/end) and any follow-up actions
• Acknowledgement by the reviewer and the employee (email confirmation works)

Keep it short and practical. You want a tool everyone will use, not a form that slows the process down.

Practical Tips To Avoid Common Pitfalls

• Don’t leave it to the last day: Book reviews well before the probation end date so you have time to implement the outcome correctly.
• Be specific, not subjective: Tie feedback to the role and observable examples.
• Use your contract: Only extend if your contract permits it, and stay within the timeframe it allows.
• Check notice: Confirm NES and contractual notice for the individual before you act, including any payment in lieu.
• Watch for prohibited reasons: Make sure your decision-making is free from discriminatory or adverse action risks.

Key Takeaways

• Probation is a contractual period used to assess fit and performance; it doesn’t change your core obligations under the Fair Work Act or the NES.
• Unfair dismissal eligibility starts after 6 months (or 12 months for small businesses), but general protections and anti‑discrimination laws apply from day one.
• Even during probation, ongoing employees must receive the correct NES notice of termination or a lawful payment in lieu.
• A consistent, documented review process - tied to the role’s expectations - supports fair decisions and reduces risk.
• Choose a clear outcome before the probation end date: confirm, extend (if your contract allows), or end employment with proper notice.
• Set yourself up with strong documents such as a standardised Employment Contract, a short review template, and simple extension or notice letters.

If you’d like a consultation on setting up or improving your probation review process, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.