Alex is Sprintlaw’s co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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Hiring is exciting, but it’s also a big commitment. A probation period gives you and your new team member time to make sure the role, expectations and culture are the right fit before you lock things in for the long term.
In Australia, probationary employment is common across industries and business sizes. It can be straightforward to manage-provided you set it up clearly, follow your obligations under workplace laws, and document decisions properly.
This guide breaks down what probation is, how long it should run, what the law requires during probation, and practical steps to manage it fairly and confidently.
What Is Work Probation?
Work probation (sometimes called a probationary period) is a defined period at the start of employment where both parties assess whether the arrangement is working as intended.
For you, it’s a chance to confirm the employee has the right skills and approach, and that they’re adapting to your workflow and values. For the employee, it’s time to check the role, workload and workplace are what they expected.
Probation does not remove employee rights. It simply provides a structured window to evaluate suitability, with some flexibility around ending employment if it isn’t the right match-subject to the Fair Work framework and your contract terms.
How Long Should Probation Last In Australia?
Most Australian employers set probation at 3 or 6 months. Some senior or highly specialised roles may justify a longer period (up to 12 months), but the length should be reasonable for the role and clearly stated in the employment contract.
It’s also important to understand how the Fair Work Act 2009 treats unfair dismissal access. Separate from your contractual probation length, there’s a minimum employment period that determines when employees can apply for unfair dismissal:
- 6 months if your business has 15 or more employees, or
- 12 months if you’re a small business (fewer than 15 employees).
This means you might set probation at 3 months, but an employee may not be eligible to bring an unfair dismissal claim until the relevant 6- or 12-month minimum employment period has passed.
However, all employees (including probationary employees) are protected from unlawful termination, discrimination and adverse action from day one. And small businesses should be aware of the Small Business Fair Dismissal Code, which outlines what’s considered fair dismissal practice for small employers.
Legal Rules You Must Follow During Probation
Probation adds structure to the first months of employment, but it does not override your legal obligations. Key rules to keep top of mind include:
Minimum Entitlements Still Apply
- Permanent employees on probation are entitled to the National Employment Standards (NES), including paid leave accrual, public holidays and applicable notice of termination.
- Casuals are generally not entitled to paid leave or NES notice, but they receive a casual loading and may have minimum engagement periods under an award or contract.
- Superannuation obligations apply according to the usual rules.
Notice And Final Pay
When ending employment during probation, you must give the required notice or payment in lieu for permanent employees, unless you’re dismissing for serious misconduct. Casual employees are generally not entitled to notice under the NES, unless your award or contract says otherwise.
Modern Awards And Enterprise Agreements
If a modern award or enterprise agreement applies, follow any probation-related terms (such as review steps, minimum engagement or notice requirements). Awards also set minimum classification, hours and penalty rate rules-which apply to probationary employees too.
General Protections And Discrimination
Probation doesn’t permit dismissals for unlawful reasons. You cannot terminate because an employee exercised a workplace right, made a complaint, or for discriminatory reasons (e.g. race, sex, disability, age). These protections apply from the first day of employment.
Record-Keeping And Communication
Keep concise notes of feedback, check-ins and any performance concerns. Clear, respectful communication and a paper trail help you demonstrate fairness if your decisions are later scrutinised.
How To Set Up And Manage A Probation Period
Good setup and consistent management reduce risk and improve outcomes. Here’s a practical framework you can follow.
1) Lock In Clear Contract Terms
Spell out the probation length, how performance will be assessed, and the notice that applies if you end employment during probation.
An Employment Contract should also address hours, duties, classification (if award-covered), pay, confidentiality, IP ownership, restraint and any policies that form part of the employment terms.
2) Onboard Well And Set Expectations
Provide a structured induction, key policies, and an outline of the role’s priorities for the first 30, 60 and 90 days. People perform better when they know what “good” looks like.
3) Agree On Measurable Goals
Set clear, achievable checkpoints. For example, target outputs, service levels, or behavioural markers (communication, teamwork, responsiveness). Make them specific and time-bound where possible.
4) Schedule Regular Check-Ins
Book short fortnightly or monthly check-ins during probation. Use these to recognise progress, clarify expectations and address issues early. Keep brief notes after each meeting.
5) Offer Support And Training
If gaps appear, consider training, shadowing or clearer instructions. Showing you’ve supported the employee strengthens fairness and often turns performance around.
6) Run A Formal Review Near The End
Before probation expires, meet to discuss outcomes and next steps: confirm employment, extend probation if allowed by the contract, or end employment with the required notice or payment in lieu.
If you employ casuals, you can still set goals and review performance-just remember that casuals typically have different entitlements and termination rules. For more detail, see probation periods for casual employees.
Ending Employment During Or After Probation
Sometimes, despite support and clear expectations, the role isn’t the right fit. If you decide to end employment, take a fair and methodical approach.
Follow Notice Rules (Or Pay In Lieu)
Provide the correct notice (or payment in lieu) for permanent employees unless it’s a case of serious misconduct. Check any applicable award or agreement for specific requirements. For casuals, NES notice generally doesn’t apply-though your contract or award could say otherwise.
Be Clear And Respectful
Hold a brief meeting to explain your decision, then confirm it in writing with the end date and any payments due. There is no general legal requirement to provide written reasons for dismissal upon request, but it’s best practice to communicate a short, factual rationale (and some awards or agreements may require additional steps).
Consider Process And Risk
Even during probation, a sensible process helps manage legal risk. Where feasible, give the employee an opportunity to respond to concerns. For small businesses, align your approach with the Small Business Fair Dismissal Code.
Unfair Dismissal And General Protections
Whether an employee can access unfair dismissal depends on the minimum employment period (6 or 12 months). If a claim is available, the Fair Work Commission looks at fairness factors set out in section 387 of the Fair Work Act. General protections claims (e.g. adverse action or discrimination) can arise at any time, including during probation.
Document The Decision
Keep a note of the reasons, your meeting date, the notice provided or paid, and any final payments. This documentation can be critical if your decision is challenged later.
If you’re weighing up options at the end of probation, this practical overview of terminating employment during probation is a useful next step.
Essential Documents For Managing Probation
Having the right documents in place helps you set expectations, manage performance and reduce the chance of disputes.
- Employment Contract: Sets the probation length, duties, pay and termination provisions. A well-drafted Employment Contract is the foundation for a smooth probation process.
- Staff Handbook: Centralises your workplace rules (conduct, leave, WHS, IT, social media, bullying/harassment) so new starters know how things work. A tailored Staff Handbook makes onboarding clearer and more consistent.
- Workplace Policies: Policies on performance management, complaints, and grievance handling help you act consistently and fairly. If you need to build or update policies, see Workplace Policy support.
- Performance Review Template: Simple forms for 30/60/90-day check-ins keep feedback structured and documented.
- Probation Extension Letter: If your contract allows extensions, use a clear letter to confirm the new end date and goals.
- Show Cause Letter (When Appropriate): In cases of serious performance or conduct concerns, a show cause letter can be a fair way to invite a response before making a decision.
- Termination Documents: Use a concise termination letter and follow a checklist for final pay, return of property and systems access. If you need a ready-made suite, consider an Employee Termination Documents Suite.
If any employees are award-covered, make sure your contracts and policies align with modern award obligations for their classification and industry.
Practical Tips To Make Probation Work
- Front-load clarity: Don’t wait until the last week. Make expectations, goals and timelines clear from day one.
- Coach early, not late: If you see issues in week two, address them in week two. Early coaching beats late course-correction.
- Keep notes short and regular: A few bullet points after each check-in is better than one long note at the end.
- Be consistent across roles: Use similar review rhythms and standards for comparable positions to avoid perceived unfairness.
- Check your calendar: Diarise the probation end date to avoid rolling past it by accident-silence can create uncertainty about status.
- Think culture-add, not just culture-fit: Consider whether a different working style still strengthens your team and business goals.
Key Takeaways
- Probation is a set period at the start of employment to confirm role and cultural fit-most businesses use 3 or 6 months, stated in the contract.
- Permanent probationary employees still receive NES entitlements; casuals usually don’t receive paid leave or NES notice but may have award or contractual rules.
- Unfair dismissal access depends on the minimum employment period (6 months for larger employers, 12 months for small businesses), but general protections and discrimination laws apply from day one.
- Set probation up clearly in writing, run consistent check-ins, and document feedback and decisions throughout.
- When ending employment, follow notice or payment in lieu requirements, be respectful, and keep a paper trail; written reasons aren’t generally required by law but are often good practice.
- Core documents-Employment Contract, policies, Staff Handbook, review templates and termination letters-make probation smoother and reduce disputes.
- If you’re unsure about awards, notice for casuals, or process at the end of probation, get advice before you act.
If you would like a consultation on managing work probation and probationary employment in your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
