Probation Is Not a Free Pass

Many employers treat the probation period as a trial run, assuming that employment can be terminated at will if an employee is deemed “not suitable”. However, numerous Industrial Court decisions have reminded employers that the law does not see it that way.

Behind every decision of non-confirm or to terminate a probationer lies an important question:

Was the non-confirmation or termination of the probationer supported by just cause or excuse?

At the outset, the Industrial Court recognises that an employer is entitled to assess whether a probationer is suitable for permanent employment. However, the decision must be based on a fair and genuine assessment of the employee’s suitability, rather than a conclusion simply announced at the end of the probation period.

Under Section 20 of the Industrial Relations Act 1967, an employee who considers that he or she has been dismissed without just cause or excuse may file a representation for reinstatement within 60 days of the dismissal. The protection under Section 20 extends to probationers as well as confirmed employees. An employee’s probationary status does not, by itself, exclude the employee from protection against dismissal without just cause or excuse.

Employers should therefore not underestimate the legal risks associated with terminating a probationer or deciding not to confirm an employee. For more on this topic, please see our earlier article on terminating a probationer without just cause or excuse.

When a dispute arises, the employer bears the burden to prove that the decision to terminate the probationer was justified.

The critical questions are: Why was the employee considered unsuitable, and what evidence supports that conclusion?

If you decide not to confirm a probationer, can you demonstrate, through contemporaneous documents and credible witnesses, why the employee was considered unsuitable for the role?

In many probation disputes, the employer may genuinely have provided feedback or raised concerns about the employee’s performance. However, such feedback may have been given verbally, mentioned only in passing, or communicated through messages that were never properly retained. Without appraisal forms, meeting records, written feedback, warnings where appropriate, or witnesses who can testify to the concerns raised, the employer may struggle to substantiate its decision before the Industrial Court.

An employer that can only assert that an employee “did not fit” or was “not suitable” may find itself in a weak position if it cannot demonstrate how that conclusion was reached.

A termination issued only days before the end of the probation period, without any documented performance reviews or prior feedback, may also invite scrutiny as to whether the employee’s suitability was genuinely assessed throughout the probation period.

It is advisable that employers should approach every probation termination on the basis that the decision may eventually be examined before the Industrial Court. Employers should be able to produce a coherent trail:

• Clear role expectations

• Structured probation review

• Documented feedback and warnings

• Reasonable time and support to improve

• Fair final assessment

• Written decision with reasons

If any part of this process is missing, the employer may face unnecessary legal risk.

At Shang & Co., our Employment & Industrial Relations Practice team assists employers in structuring probation processes, managing performance and misconduct, and defending claims of unfair dismissal. Contact us to discuss how your organisation can manage probation more effectively and reduce its employment-related legal risks.