13 December 2019
Employment Law - Small business employee terminated during minimum employment period
An employee was offered a position on six months probation. There have been issues with honesty. The workplace employs only four people. On what basis can the employment be terminated?
Thank you for the question.
The employment can be terminated lawfully without reason during the probationary period by providing written notice of the termination.
The By Lawyers Employment Law commentary provides the following:
The Fair Work Act 2009 prohibits the dismissal of an employee for unlawful reasons, such as trade union membership or because of a person’s sex, race or religious belief: see s 351 and s 772.
... Although probationary periods remain somewhat relevant, the ‘minimum employment period’ prescribed by s 383 of the Fair Work Act 2009 has largely rendered the utility of the probationary period redundant for those employees who have unfair dismissal access. An employee whose employment is terminated within the ‘minimum employment period’ cannot bring an unfair dismissal claim.
Small business employers benefit from a minimum employment period of 12 months instead of 6 months during which an unfair dismissal claim cannot be made. ...
A ‘small business employer’ is one that employs fewer than 15 employees based on a headcount of each employee, irrespective of hours worked.
Further information can be obtained from the Probation page on the Fair Work Ombudsman website.
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