Probation Termination is Simple....or is it?

The probation clause often states either party can terminate the employment by providing one week’s notice with no need to give a reason.

Even if there is no probation clause, or no employment contract, a minimum employment period applies before an employee is eligible to make a claim for unfair dismissal. For a small business, (less than 15 employees) that minimum period is 12 months; for others it is 6 months. This means that, practically speaking, the employer can terminate the employment without cause during the minimum period by simply providing the required notice.

However, there is NO minimum employment periods for other types of claims, such as adverse action and discrimination claims and if an employee believes their claims fit into general protections provisions, they are entitled to bring an adverse action claim.

The onus then falls on the employer to show that the reason for termination was not unlawful.

Consequently, though there is no legal obligation to provide a reason for dismissal of an employee during their probation period, best practice is to provide one to minimise the risk of an adverse action claim on the employer.

If employers terminate an employee during the probation period, we recommend you:

• give a reason for termination during probation - this can simply refer to poor conduct or performance.
• ensure the termination is not for a ‘prohibited reason’.
• provide a written confirmation of the termination that refers to the lawful reason for dismissal.

Employees may still bring a claim, however, the termination letter provides evidence of the reason for dismissal and reduces the ability of the employee to suggest there were other reasons at play.

Subscribers to Your HRdocs have access to resources to communicate probationary terminations.  Should you require assistance with managing terminations or performance during the probationary period, please contact us.