Probation vs. full-time: are the entitlements the same for both employees?

The minimum employment period, otherwise known as the probation period, allows both employers and employees to determine if an employment relationship is worth continuing.  But when it comes to entitlements, do employees within their probationary period get the same entitlements as full-time workers, and how does this the impact business owners?

In this article, we answer these important questions and more, so let’s get into it…

1. So, what is a probation period?

Probation periods are commonly used at the beginning of the employment relationship, providing both the employer and employee a chance to assess whether the employee is a good fit for the role they’ve been hired for.

The duration of a probation period is entirely up to the employer, it often ranges from three to six months, beginning from when the employee starts employment.

It’s essential to understand that the Fair Work Act 2009 (Cth) (FW Act) doesn’t use the term ‘probation’, instead, it refers to a ‘minimum employment period’. The minimum employment period is six months for large businesses (employs 15 employees or more) and twelve months for small businesses (employs less than 15 employees).

During an employee’s minimum employment period, or probation period, their employment can be terminated with one week’s notice in line with the National Employment Standards (NES), unless their employment contract offers a more generous notice entitlement.

2. Are employee entitlements the same during the probation period?

Yes, they are. While an employee is within their probationary period, they are entitled to the same entitlements as full-time or part-time employees, including the accrual and use of paid leave. If an employee is terminated within their probationary period, not only are they entitled to receive notice of termination as discussed above (unless, of course, they’re terminated for serious misconduct), but they’re also entitled to receive payment for all accrued but unused annual leave.

Given that all employment entitlements remain the same regardless of whether the employee is within their probationary period or not, you might be wondering: what is the point of a probationary period?

If an employee is terminated during the minimum employment period (which usually aligns with the probation period outlined in an employee’s contract of employment), they can’t lodge an unfair dismissal claim. Employees terminated within their minimum employment period are not protected from unfair dismissal. This means, as stated, they are unable to make an unfair dismissal claim in respect of their termination. This allows an employer to confidentiality terminate an employee during their minimum employment period, without worrying about an unfair dismissal claim due to procedural issues.

However, this doesn’t mean that employees within their probationary period are left unprotected. Employees in this situation still have access to make a general protections claim and/or a discrimination claim. These claims can be made before, during, or after employment. General protections claims typically arise when an employee believes they’ve faced adverse action (e.g., dismissal) for exercising a workplace right (e.g., taking paid personal leave or making a workplace complaint) or having a protected attribute (e.g., having family or carer responsibilities). For example, if an employee is terminated shortly after raising a bullying or harassment complaint, they could have grounds to make a general protections claim, which can put the employer at risk.

3. What are the key lessons for employers?

Many people mistakenly believe that employees on probation don’t have the same rights as their full-time counterparts. The reality is quite different, with the main distinction being that employees within their probationary period (assuming this aligns with the minimum employment period defined above), aren’t eligible to lodge unfair dismissal claims. However, they’re still protected under general protections and discrimination laws, which means employers cannot take adverse action against them based on attributes like age, religion, or other protected characteristics.

To ensure compliance and reduce risks when managing employees during probation, it’s always wise to consult with employment law professionals – this helps protect both your business and your team.

How Citation HR can help

Whether your employee has completed the minimum employment period or not, this shouldn’t be your only consideration when deciding if termination is appropriate. As an employer, you need to be aware that any action may expose your business to significant risk, irrespective of the minimum employment period. Handling things sensitively and professionally and complying with the law will greatly reduce your risk of an unfair dismissal or general protections claim.

For clients of Citation HR, if you have any questions about probationary periods or you have another workplace matter you need assistance with, please contact our HR Advice Line.

Not a Citation HR client? The team at Citation HR can support your business on a range of workplace matters. Contact us today to arrange a confidential, no-obligation chat.

About our author

Tuvini Jayakody is a Workplace Relations Advisor at Citation HR. She assists clients with a range of employment relations and compliance matters via the HR Advisory Service. She is currently studying for a Bachelor of Commerce and Laws.