A probation period is a trial window at the start of employment, giving both employer and employee a chance to assess fit. But here is what catches most employers off guard: the Fair Work Act 2009 never uses the words ‘probation period’. Instead, it creates a ‘minimum employment period’ under s.383 — and that is the figure that actually determines whether an employee can lodge an unfair dismissal claim, not whatever probation length you wrote in your employment contract. Our 2026 employer guide to employment agreements covers probation clauses in detail.

What is a probation period in Australia?

A probation period (in everyday workplace usage) is the initial phase of employment during which an employer assesses whether a new hire is suitable for the role. In law, however, what matters is the minimum employment period — the time an employee must work before they gain access to unfair dismissal remedies under the Fair Work Act 2009.

For employers with 15 or more employees, the minimum employment period is 6 months. For small businesses with fewer than 15 employees, it is 12 months. Under the Fair Work Ombudsman, these periods also align with when the Small Business Fair Dismissal Code applies.

Employers can set any probation length in the contract — 3 months, 6 months, or longer. But if a contractual probation exceeds the statutory minimum employment period, the employee gains unfair dismissal rights while still on probation. This is the single most common compliance trap for employers.

What is the standard probation period in Australia?

There is no legally mandated standard. The most common approach is to align the contractual probation period with the statutory minimum employment period: 6 months for mid-size and large employers, 12 months for small businesses. This ensures the employer’s right to dismiss without unfair dismissal exposure matches the contract’s probation window.

If you set a shorter probation (e.g. 3 months), the employee still gets the full minimum employment period as protection. If you set a longer one, the employee gains unfair dismissal rights before probation ends — which defeats the purpose.

What is the maximum probation period in Australia?

The Fair Work Act does not cap probation length. You could set a 12-month probation at a large employer, but once the 6-month minimum employment period passes, the employee has unfair dismissal rights regardless of the probation clause. So while a 12-month probation is not unlawful, it does not extend the unfair dismissal protection gap beyond the statutory minimum.

The practical rule: set probation to 6 months (15+ employees) or 12 months (under 15 employees). Anything longer does not add protection but can confuse managers about when their latitude to dismiss expires.

Do NES entitlements apply during probation?

Yes — and this is the most misunderstood aspect. National Employment Standards entitlements start from day one, regardless of probation status. Annual leave, personal leave, compassionate leave, and parental leave all accrue during probation. The employee is also entitled to the statutory notice period if dismissed during probation.

The only legal difference during the minimum employment period: the employee generally cannot lodge an unfair dismissal claim. Everything else — pay, leave, overtime, penalty rates, notice, and super — applies identically.

Why is the probation period 6 months for most employers?

The 6-month threshold comes from s.383 of the Fair Work Act 2009. It balances giving employers time to test a new hire’s suitability while ensuring employees are not indefinitely exposed to dismissal without recourse. For small businesses (under 15 employees, counting casuals employed regularly), the period is 12 months — recognising smaller operations need more time. After 12 months, the Small Business Fair Dismissal Code no longer applies and standard unfair dismissal rules take over.

Can an employee make a claim during probation?

Yes — just not an unfair dismissal claim. From day one, employees can lodge the following:

• General protections claims (s.351) — for dismissal linked to a workplace right or protected reason
• Adverse action claims — for discriminatory action based on race, sex, age, pregnancy, etc.
• Unlawful termination claims — for dismissal based on discrimination or pregnancy

General protections claims have no compensation cap, making them potentially more expensive than an unfair dismissal claim (capped at $95,050, half the high income threshold of $190,100 from 1 July 2026). This means ‘I fired them during probation’ is not a defence if the dismissal was for a protected reason.

How to manage performance during probation

Probation needs active management. For a structured approach, see our performance management framework.

1. Set clear expectations at the start — provide a written role description and performance criteria.
2. Schedule regular check-ins — at minimum weekly in the first month, then fortnightly.
3. Document everything — keep written notes of reviews, feedback, and any concerns.
4. Address issues early — do not wait until the final week to raise performance problems.
5. Give a formal warning if performance is below standard — this creates a paper trail if dismissal becomes necessary.
6. Make the decision before probation ends — confirm, extend, or terminate before the probation expiry date.

If you need to extend a probation period, use a written variation — but if the extension crosses the minimum employment period, the employee gains unfair dismissal rights. Seek advice first.