Does LWOP 'extend' or prolong a period of probation?

[HRdeeHarHar]

Have had a good look for this through the FWA but havent come up with an answer. Basically I have a guy who commenced, lets say 1/10/2012. He has subsequently taken 3 weeks as LWOP during this period. Does this allow us to push out his 6 month probation period by the 3 weeks he was not at work? My gut feeling says No but im open to suggestions and thoughts.

[Qld IR Consultant]

No such thing really anymore as probation period. If he signed up to the job on the basis of their being one then you are within your right to extend it as long as he is fully aware of the reasons why and what the expectation are in terms of his attendance and performance.

[NicoleAnita]

It's now called the minimum employment period that is the 6 months someone has to work before they can access unfair dismissal laws. Be mindful this is different to unlawful dismissal.
What is the reason for the LWOP? Is it to care for a family member, an illness or some other valid reason. You need to find this out before you commence any extensions and the ability to extend needs to be expressed in his employment contract before he started.

I'm also going to assume somebody approved the LWOP as companies are under no obligation to grant it.

[Qld IR Consultant]

Nicole is correct but don't confuse it with the old school process of telling staff they have 3-6 mths to prove they can do the job, as opposed to the min employment standards. It is purely for access to UFD and not to do with actual measured performance in the role. I know there are still a lot of employers out there doing the old "probationary period" thing but if you don't use it correctly and takes measures before the 6mth min employment time comes around you may find yourself at the wrong end of a UFD claim......I personally wouldn't advise the employee they are on probation of any sort as most will instantly write the 6mth date on a calendar.......

[hr63]

There is no longer a probationary period but in Victoria it is a 6 month "qualifying period" with the same conditions based around it. A qualifying period can be extended however once you do this after the 6 months, if it does not work out then you have to go through the standard termination process which is the 3 written warnings, where as during the qualifying period each party can terminate with one weeks notice period. So there is no purpose to extending the 6 months. Good luck.

[Moz]

There is no longer a probationary period but in Victoria it is a 6 month "qualifying period"

"in Victoria"? I thought we had uniform legislation across all States and Territories?

[Tiger]

I have certainly done this with full discussion with employee and a letter confirming which employee signs in understanding. Pretty much same process used when you have someone who is either not performing in the job or where there may be other issues presented where you need more time to evaluate their suitability for ongoing employment.

Just document, file notes, etc everything.
:rolleyes:
Tiger

[Moz]

Surely the "minimum employment period" effectively overrides any "probationary period" mentioned in the employment contract/agreement for the purpose of unfair dismissal claims?

So even if you have mentioned a 3 month "probationary period" in their employment contract, could you still terminate the employee within the first 6 months without fear of a claim?

It would be good to get some clarification on this because I bet there are heaps of post NES employment contracts that still contain a three month "probationary period".

[NicoleAnita]

"in Victoria"? I thought we had uniform legislation across all States and Territories?

Correct. The Fair Work Act is National.

[NicoleAnita]

Hi Moz

You can still have a 'probation period' in an employment contract as a performance tool. The only difference is the MIP (6) months is only accessible to those employees that have completed those 6 months then they will have access to unfair dismissal laws. Even after 6 months you can still terminate as long as it is not unfair,unjust, unlawful etc. In other words you still need a valid reason for termination. employees will certainly challenge any termination if they have been there for 6 months or longer.

Unlawful dismissal is excluded at any time in the employment relationship. For example if you have someone working for you for 2 months and they are not performing then you may terminate without fear of legal action
as long as procedural fairness has been applied and it is not unlawful ( see explanation below). You need to make sure you document everything etc as you would normally do with any performance management etc but ensure its not harsh, unjust or unlawful.

Unlawful termination is considered to be things like race, carers responsibilities, sickness, pregnancy etc. if you do and the employee challenges it on any of those examples
( remembering the onus of proof is on the employer) you will more than likely be found to have unlawfully terminated whether they have been there for 2 months or 2 years.

Hope this clarifies things a bit.