A probationary period is a period of time (i.e 3 months) when an employee is first employed, which allows either the employer or the employee to terminate the employment for any reason.  The purpose of a probationary period is for both parties to decide whether the employee is suited to the position and / or employer’s business.

A ‘probationary period’ is created by a written employment agreement, and therefore, if no written employment agreement exists, the employee’s employment will not be subject to a probationary period.

Regardless of whether or not a new employee’s employment is subject to a probationary period, under the Fair Works Act, an employer can still terminate an employee’s employment for any reason within a ‘minimum employment period’ without unfair dismissal laws applying.  The minimum employment period is either:

• for an employer that employs less than 15 employees – the period is 12 month
• for an employer that employs 15 or more employees – the period is 6 months

Note that the ‘prohibitive reasons’ for termination under unlawful termination laws still apply during the minimum employment period (see article on ‘Unlawful Termination’).