Probation Periods

My new HR manager wants to have 6 months probation period for all new staff. We don't have a policy for this. Can we legally do this as a matter of course? I was under the impression that 3 months was standard. Can anyone help me with this one?

Hi Margot,

I work in an organisation covered by the WA Minimum Conditions of Employment Act. Genreally the Industrial Relations Commission (at least here in WA) only recognises the first 3 months as the probationary period if you have any claims made against you. Although probationary workers have a much more difficult time making a claim, they still have the right to do so under this legislation.

I have not yet had the burden of working in the Federal system so I can't comment on that.

Having some sort of policy covering probation, substandard performance, and discipline is essential, as having this process written down will not only help you in defending your employer, but will also provide valuable guidelines for managers.

Just my humble opinion.


Cheers
Michaela

Margot can you clarify whether your under the federal industrial relations system? This is most likely the case, in which case if you have more than 15 staff, the maximum probation period can be 6 months.

There are two important points worth clarifying on this topic:

Firstly, this period can be extended where there are periods of leave without pay as per the regulations of the Fair Work Act

Secondly, even if you state a shorter probation period, for the purposes of lodging an unfair dismissal claim, it appears that the employee still would not be able to file a claim for unfair dismissal if the termination occurred after the stipulated probation period, but before the 6 months service, which is defined as the minimum period of employment within the act.

In short, providing that the federal legislation applies to the company, yes she can. However, in some respects it doesn't matter either way, it just influences when the probation review occurs.

I believe that he or she can do this as the new statutory requirements have been moved to 6 months probation period or qualifying period before someone can bring an unfair dismissal claim. Companies usually have a 3 month probation period but there is no real reason why he or she cant put into place a 6 month probation period. However, I would add that best practice would be consulting with people in the business around this before implementation to discuss the benefits and drawbacks of it.

Best Regards
David Fox
The HR Practise
david.fox*thehrpractise.com.au