A probationary period is a set time at the start of employment that allows both the employer and employee to assess whether the role is a good fit. Under the Fair Work Act 2009, probationary periods are created by the written employment agreement — if no written agreement exists, there is no probationary period. This guide covers the legal limits, the relationship between probation and unfair dismissal, and the practical steps employers should follow.

What is a probationary period under Australian law?

A probationary period gives the employer time to assess a new employee’s performance, conduct, and suitability for the role. It is created by the employment contract — not by legislation. The National Employment Standards (NES) do not explicitly define probation, but they impose a doctrine of reasonableness that courts apply strictly.

Key characteristics of a valid probationary period:

• It must be in writing in the employment contract or offer letter
• It must specify a clear end date and performance criteria
• It must be reasonable in duration relative to the role’s complexity
• It cannot be used to circumvent unfair dismissal protections

How long can a probation period last?

Your relevant Modern Award may also specify probation limits. Some awards (e.g. Aged Care, Disability Services) impose specific limits like 3 months, while others (e.g. Hospitality, Retail) are silent and default to common law reasonableness. Always check your award and enterprise agreement before setting probation length.

Probation and the minimum employment period

This is where many employers get confused. The minimum employment period under the Fair Work Act determines whether an employee can bring an unfair dismissal claim — and it operates independently of any probationary period:

• Employers with fewer than 15 employees (small businesses): the minimum employment period is 12 months. An employee terminated before 12 months cannot bring an unfair dismissal claim.
• Employers with 15 or more employees: the minimum employment period is 6 months. An employee terminated before 6 months generally cannot bring an unfair dismissal claim.

This means a probationary period and the minimum employment period may overlap but are legally distinct. Probation is a contractual concept; the minimum employment period is a statutory protection.

Can you extend a probationary period?

Yes, a probationary period can be extended if the employment agreement allows it and the extension is reasonable. For a detailed guide on when and how to extend probation, see our article on extending an employee’s probationary period. Key rules:

• The extension clause must be in the original written agreement
• The total probation period (including extension) should not exceed 12 months
• You must give written notice of the extension with clear reasons and new performance criteria

What happens after probation ends?

If the employee is confirmed in the role:

• Standard employment protections apply in full
• Any further performance issues must follow the full performance management process — documented expectations, feedback, warnings, and opportunity to respond
• Dismissal now requires stronger substantive and procedural fairness

Document the outcome clearly: “Probation successfully completed, confirmed as full-time employee.” Don’t let probation end ambiguously.

Key takeaways for employers

• ✓ Standard probation range of 3–6 months is compliant with Australian law
• ✓ Extended probation (6–12 months) requires written justification — only for senior/specialised roles
• ✓ Probation periods beyond 12 months are rejected by the Fair Work Commission
• ✓ Dismissal during probation still requires a documented reason and fair procedure
• ✓ Check your enterprise agreement and modern award before setting probation length