Extension of Probation Period

[Ms_HR]

Hi All,

Just seeking everyones thoughts!!

I have an employee that we are looking at possibly not confirming employment beyond the probationary period.

Am looking at a few other options for the GM and thinking about the possibility of extending the probationary period for another 3 months. My first initial reaction is that if they aren't suitable at 3 months are they really going to be suitable at 6 months??? However i would like to just research this option a little more. An extension of the probationary period is not expressed in either our enterprise agreement or contract of employment so am thinking that perhaps we would not be industrially entitled to do this.

Can anyone shed any light????

Regards
Ms_HR

[MDB]

HI...I had to extend someone's probation once...and this what i was told...we can do it however....you just need to be aware that you have to show proof that the person has not shown sufficient evidence to prove permanency, or you want more time to observe certain aspect of behaviour which have just come to the surface in the first 3 months
As long as you discuss the extension and if the staff agrees, you can offer procedural fairness, advising the reason for the extension, what is required in the 3 months, all details needed - otherwise you have the option to terminate within the 3 month period

[Stephanie1979]

Hi There
I have always been told that probation must be agreed to prior to the commencement of employment, therefore if you have agreed to 3 months probation then that is the time you have to make up your decision about suitability of employment - it is worth bearing in mind that you also have 6 mth qualifying period in which the employee is exempt from making an unfair dismissal claim. If you are unsure I would recommend that you commence a perf. mgmt process with KPI's in place - if the employee doesn't meet them then he is let go due to his performance.

[kevinh]

If an employment agreement states that there is a 3 month probationary period it can only be varied by agreement between the parties - highly recommended to be done in writing.

This is of course just my personal opinion and not formal advice!

[bkplan]

I agree with Kevinh and others, if the probation period has already been agreed then in my view you can't extend, without their agreement (I'd suggest getting formal legal advice if you wish to pursue this option).

As you say, if the individual is marginal within the 3 months, then what will he/she be like further down the track. I can't personally think of many instances where there have been issues in the probation period and the employee has turned it around. That said the employee should be given every opportunity to improve,

[kevinh]

Although I understand why people here are saying if a person hasn't worked out in three months then they may never work out, there are occasions where an employee doesn't get the necessary training and/or management guidance to perform their intended role adequately in the first three months. I know this is far from ideal but it does happen. They may also not be getting adequate feedback.

Given the investment in time and money in hiring people and the difficulty in replacing people, each case should be carefully assessed individually, IMHO

[bmaillet]

Probation periods should be agreed by both parties including any variation post-contract signing. Moving forward, suggest your contracts include the following clause so that you are able to exercise variation more freely in future...


"...Your employment is subject to a probationary period of 3 months from the commencement date upon this agreement. This probationary period does not affect any qualifying period as set out by law. During this period your performance and suitability for the position will be assessed. Subject to the results of this assessment at the conclusion of the probationary period, a decision will be reached as to whether your probation has been completed successfully and your employment continued.

At any time during or at the end of your probationary period, your employment may be terminated by either party giving to the other 1 weeks notice or in the case of ABC Company, making a payment in lieu of notice.

Your probationary period may be extended by ABC Company for a period of up to 3 months where your service has been unsatisfactory, or where you have been unable to perform your duties due to illness or absenteeism. Where the probationary period is to be extended, ABC Company will, before the expiry of the period of notice, give to you written notice of the extension."

Hope that helps you.

[bkplan]

kevinh I agree you can't apply a cookie cutter approach to these types of scenarios, each case needs to be assessed on its merits.

bmaillet that is very well written clause, which leaves little doubt as to how the probationary period should operate.

[Tilly]

Hi,

Just a question on probation that I am going through at the moment.
I started a new job just over 2 months ago, I had a 3 month probationary period. For this job I moved cities, family and all. Within 5 weeks of taking the position my subordinate was allowed to take 6 weeks holidays. As such I have been working two roles. In my first week, there were three roles, with one person retiring that week, dropping back to two.
I was called in for a performance review today and advised my probation would be extended 3 months as they were unable to ascertain my ability in the light of undertaking further duties.
Honestly I believe I have been treated poorly with no training or support. I have asked my manager for support and have been provided one guy from a different section two hours in the morning, which is of little help. I have verbally asked, and formally advised in email that I am struggling to maintain service levels whilst covering 2-3 positions.As my manager did not seem to care or listen I went to HR who recorded my feelings. I feel I am getting further penalized for my managers decision to allow my sub-ordinate 6 weeks holidays. My manager advised he had taken holidays due to me, and not planned, for which I am perplexed. Mind you my manager and this guy worked together for a long period before an amalgamation and come from the same small town.Having the goal posted changed has left me feeling I should not have taken the role and moved.....

Any thoughts on how I should take this....

Thank you,
Tilly

[ER-Enthusiast]

In relation to "probations" you cannot get someone to "mutually agree" to an extension, what you are saying to them is we aren't convinced your fulfilling the role at this stage so either we terminate your employment or we extend your probation for three months and go through evaluation again then. Hardly a fair agreement!!

In all honesty, if you are unable to evaluate within three months, and in some companies three months isn't long enough maybe there should be an overhaul of your probationary process and it be changed to six months for all new employees. I don't agree whatsoever with the clause where you may wish to extend it, if anything it's six months and if they are outstanding you can finalise their employment prior to six months. Let's not look to closely at what the rules are, lets align ourselves with what is fair!!!

Sorry to come accross in such an intense way but take a step back and put yourself in the employees shoes, Tilly for example is someone who is a product of such decisions. Tilly, reading your comment I would imagine you have a lack of confidence in this company and I am sure that will not lead to positive results. I think if they are going to extend your probation, run with it perhaps if this pattern continues this is not the job for you!

[FWI]

Well, it is very simple.

The Fair Work Act 2006 no longer provides a probationary term, and as such, there is no longer a probation period other than what industry believes occurs as opposed to what the law requires.

Simply put, an employer can terminate the employment of an employee for any lawful reason prior to the 12th anniversary without there being any unfair dismissal action being taken by the former employee.

In essence you only have to provide a weeks’ notice with reasons for termination, and as long as it’s not discriminatory or unlawful, action cannot be brought before Fair Work Australia.

However, at comon law, if a term is noted in the contract and sets out how probation is dealt with, and termination occurs differently to the contract, then thats another thing.

All the best.

[Qld IR Consultant]

Minimum Employment period (Probation) in the Act is 6 months. If the employee has not been adequately trained, or been given access to an appropriate level of training and support, and been taken through a transparent and robust performance management system then there is nothing stopping them from lodging an unfair dismissal claim claiming constructive dismissal. Particularly if the employee can show documented evidence of the lack of support/training etc. They can even apply of Unfair Dismissal after they have resigned!!!....Good luck!!

Unfair dismissal | Fair Work Australia

[Qld IR Consultant]

Originally Posted by FWI

Well, it is very simple.

The Fair Work Act 2006 no longer provides a probationary term, and as such, there is no longer a probation period other than what industry believes occurs as opposed to what the law requires.

Simply put, an employer can terminate the employment of an employee for any lawful reason prior to the 12th anniversary without there being any unfair dismissal action being taken by the former employee.

In essence you only have to provide a weeks’ notice with reasons for termination, and as long as it’s not discriminatory or unlawful, action cannot be brought before Fair Work Australia.

However, at comon law, if a term is noted in the contract and sets out how probation is dealt with, and termination occurs differently to the contract, then thats another thing.

All the best.

Chapter 2 Division 3 Section 382...From memory....

[ER-Enthusiast]

We should keep in mind, employees can claim after 6 months, 12 months for small business employers.

[ER-Enthusiast]

Sorry, I didn't see your reply QLD IR Consultant when i posted.