Probation is not a legal safe zone. Ending employment during probation removes unfair dismissal exposure — but not a general protections claim, a discrimination complaint, or a breach of contract. Getting the fundamentals right keeps you out of trouble.
What’s the real issue?
Employers routinely confuse two very different things:
- A contractual probation period — a creature of contract law the Fair Work Act does not mention; a trial period, usually on about a week’s notice.
- The minimum employment period — the eligibility threshold for unfair dismissal claims under section 383: six months, or 12 months for a small business employer (fewer than 15 employees).
They are independent, and the contract label never overrides the Act. A nine-month probation clause will not stop an employee (with 15 or more colleagues) dismissed at eight months from claiming unfair dismissal — they have already passed the six-month minimum.
What this looks like in practice
An illustrative composite: a Queensland services business hired an operations coordinator on six-month probation.
- No management. For nearly six months, nobody checked in — no feedback, no documented conversations — despite privately raised concerns.
- A rushed exit. With a week left, a manager panicked, called her in, and said only that she “hadn’t passed probation”. Four minutes, by phone.
- The fallout. Blindsided after zero feedback, she lodged a general protections claim, alleging it was linked to a rostering complaint she had made weeks earlier.
The decision to let her go was not the problem. How probation was managed — and how the news was delivered — was.
What does the law say — and how must it be applied?
Three sources govern every employment relationship: contract law, legislation, and industrial instruments (awards and agreements). Where a contract term is less generous than an award or legislation, the latter wins.
Most obligations apply from day one
- Full obligations from the first day. Records, pay slips, at least the minimum wage or award rate, and the full National Employment Standards. Since 1 July 2026, super must be paid each time an employee is paid. Probation changes none of it.
- Adverse action protections apply too. Under section 340 you cannot dismiss someone because they exercised a workplace right, such as making a complaint. Section 351 prohibits dismissal on discriminatory grounds. Neither has a qualifying period — only a handful of entitlements do.
Extending probation is rarely the answer
Extending probation needs an express, reasonable contract clause — and it changes nothing, because once the minimum employment period passes, it passes.
Timing a dismissal to defeat a claim is dangerous
In Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074, an employee was dismissed just seven hours before completing the minimum employment period. The Federal Court granted an interim injunction reinstating him, finding a prima facie breach of section 340: the timing was designed to prevent him making an unfair dismissal claim. Applying Qantas Airways Ltd v TWU (2023), the Court confirmed adverse action to stop someone acquiring a workplace right can breach the Act before the right exists.
What are the risks and pain points for employers?
The headline risk is the general protections claim — no income threshold, no qualifying period, so even a probationary employee can bring one. It also reverses the burden of proof: under section 361, adverse action is presumed to be for a prohibited reason unless you prove otherwise.
- Cost. Compensation is uncapped (unlike unfair dismissal’s 26-week cap), and a successful defence can still cost well over $100,000, rarely recoverable.
- Rising numbers. Claims have grown sharply, driven partly by self-represented litigants using AI to lodge them.
- Feelings drive litigation. The two most common triggers are hurt feelings and a lack of information. A cold “you didn’t pass probation” supplies both.
Our top five tips: what every employer should do
- Manage probation actively — don’t treat it as a rubber stamp. Start performance conversations on day one. Review at least monthly, document each conversation and confirm it by email, and intervene early. Decide whether to continue employment at least a month before probation ends, not in the final week.
- Give a real reason — never just “you didn’t pass probation”. A bare “probation” reason leaves the employee guessing and invites them to fill the gap with their own theory, often a general protections or discrimination allegation. Explain the specific, genuine, performance- or conduct-based reason, ideally after a show-cause conversation, and confirm it in a detailed letter.
- Deliver bad news with dignity — interactional justice matters. Procedural fairness (a fair process) and substantive fairness (a valid reason) are essential, but how you deliver the message sits on top of both. People are far more likely to accept an adverse outcome, and far less likely to litigate out of hurt, when they are treated respectfully — in person where practicable, without ambush, with a chance to ask questions.
- Be selective and deliberate about contract clauses. Include an express, clearly consented probation clause (and an extension clause only if you genuinely need one and it is reasonable). Just as importantly, leave out clauses that bind you without benefit — mandatory annual performance-review or salary-review clauses, for example, create obligations you must honour, with no upside.
- Slow down, check your bias, and get help before you dismiss. Use an impartial decision-maker where possible, test your assumptions, ask whether any protected attribute or recent complaint could make the decision look like adverse action, and be ready to explain your reasoning cogently. When in doubt, get advice from an employment law specialist before you act — not after.
Frequently asked questions
- Is dismissing someone during probation legally risk-free?
No. Dismissal before the minimum employment period passes generally removes unfair dismissal risk, but it does not remove the risk of a general protections claim, a discrimination complaint, or a breach of contract claim — none of which have a qualifying period.
- What is the difference between a probation period and the minimum employment period?
A probation period is a contractual trial period; the Fair Work Act does not mention it. The minimum employment period is a statutory eligibility criterion for unfair dismissal claims — six months, or 12 months for a small business employer. They are independent of each other.
- How long is the minimum employment period in Australia?
Six months for most employers, and 12 months for a small business employer (fewer than 15 employees), under section 383 of the Fair Work Act.
- Can I extend an employee’s probation?
Only if the written contract contains an express clause allowing it and the extension is reasonable in the circumstances. It cannot be imposed unilaterally, and it makes no difference to unfair dismissal eligibility.
- Do I have to give a reason for ending someone’s employment during probation?
You are not legally required to prove a valid reason to avoid unfair dismissal before the minimum employment period. But giving a clear, genuine reason is strongly recommended — a bare “you didn’t pass probation” markedly increases the risk of a general protections or discrimination claim.
- Why are general protections claims such a concern for employers?
They have no income threshold or qualifying period, compensation is uncapped, and the burden of proof reverses onto the employer under section 361. Even successful defences are often expensive.
- Can a probationary employee make a claim if they’ve made a complaint at work?
Yes. Protections against adverse action for exercising a workplace right (section 340) apply from the first day of employment. Dismissing someone soon after they raise a complaint invites scrutiny about your real reason.
- What does the Dabboussy decision mean for me?
It confirms that timing a dismissal to defeat an employee’s access to an unfair dismissal claim can itself breach the adverse action provisions — and can result in an interim injunction reinstating the employee. Don’t try to beat the clock; manage performance and decide well before probation ends.
How Harrisons can help
Get probation wrong and a four-minute phone call can become an uncapped six-figure claim. Get it right and ending employment, when it has to happen, is defensible and low-risk. At Harrisons, we help Australian employers — SME business owners, Queensland local government councils, and community and not-for-profit organisations — build that certainty in from day one. We can:
- Review your employment contracts and probation clauses so they protect you, not bind you.
- Build practical performance-management frameworks that make probation active, not a rubber stamp.
- Train your managers and guide difficult conversations before they become disputes.
Don’t wait for a claim to find the gap. Get in touch with our team today and start with a review of your employment contracts and probation process.
This article provides general information for Australian employers and is not legal advice. Workplace laws change and how they apply depends on your specific circumstances. For advice tailored to your organisation, contact Harrisons.
Claire Harrison is the Founder and Managing Director of Harrisons, a flourishing HR consulting business that sprouted in 2009 from Claire’s passionate belief that inspiring leaders and superstar employees are the key success factor to any business. With over 20 years’ experience, Claire has worked as a HR Director of multi-national organisations, as a Non-Executive Board Director, and a small business owner. Claire’s corporate career includes working with companies such as BHP, Westpac, Fonterra and Mayne Nickless.
