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carolynn
27-06-2013, 06:34 PM
hi, i know i could extend the current probation period of 3 months to further 3 months.
question:
1. could i just extend to another month instead of 3?
2. if i extend for another 3, and with regular reviews it does not work out, could termination be done right after the 4th month (i.e. not waiting till 6th month)?

thanks
carolynn

Greg Schmidt
10-07-2013, 03:09 PM
Because the term "probation" is not recognised in the Fair Work Act (as it was in the WR Act), there's no prohibition in the law from extending a period of probation. However, I'd suggest that you check both your own organisation's policy and the individual's contract of employment (or any other document setting out probation conditions) to see whether there are constraints on extending a probation period. Subject to those checks, I'd say that you probably have the option of extending for either a month or 3 months.

Can you extend for 3 months but terminate employment after one further month of employment? It depends on what you tell the employee about the extension. I'd suggest that you tell the employee that their performance is not satisfactory and therefore their probation period will be extended, but that monitoring of their performance will be progressive and continuous, and that their employment may be terminated before the 6 month point if they do not show sufficient improvement.

I would not rely on an early termination (ie. before 6 months employment) as protection from an employee claim about their termination - there's no minimum employment period before an employee becomes eligible to lodge a General Protections claim. And the best defence against a General Protections claim is usually to show that a dismissal (or other adverse action) occurred for a valid reason after a fair and appropriate process. It's therefore critically important to put into writing any assessments, feedback, meeting notes or warnings given to the employee, even during their probation period.

Greg.

Qld IR Consultant
11-07-2013, 07:42 AM
Greg is correct. For the purposes of the Act there is no longer any such animal as probation. It is referred to as a minimum employment period or qualifying period of 6 months. If you have stated that there is a probation period of 3 with an option to extend than thats fine, and yes you can terminate at the 4th month as long as you can clearly display that you have given the employee every opportunity to improve whatever it is they are lacking in.

An employee cannot lodge a UFD is they have not met the minimum employment of 6 months, and at not stage should any consultant or lawyer take on a case that doesn't meet that criteria. But alas that doesn't stop some from lodging a UFD if they feel aggrieved but you have the ability to object on the grounds of the minimum period.

My advice is document all discussions, make sure the employee is given adequate coaching to improve and then take it from there.

Tiger
19-07-2013, 08:31 AM
A sound employment contract template will usually includes a Probation clause which covers fact that ongoing employment will be subject to completion of a satisfactory probation period. Naturally, there needs to be a proactive approach to probation periods [PP] where there is regular review of how the employee is going. So often I have had managers come to HR to say person hasn't worked out and what to do? and it is either a day before the end of the PP or the PP has ended!
If there is regular formal monitoring (I've put this in place in several organizations where this was an issue (usually with blue collar workforce) ie with a form where manager and employee sit down at 2 and 4 months and then two weeks before end of the PP. Overkill maybe but in those situations it was necessary.

And yes, I've been involved in a few PP extensions. Obviously there have been issues and employee is aware of those issues and is working to resolve them so talking to him/her about extending the PP and reasons for that is then no surprise. I've seen extensions of three months and one or two months. Some made it and survived, some didn't.
What is essential, if you are going to do this, is COMMUNCIATION and put it in writing and have the employee sign and date that written advice as well. Once the employee has made it then be sure to advise in writing - same as you should be doing normally with all probationers who successfully complete their PPs.
Tiger