TERMINATING AN EMPLOYEE FOLLOWING AN EXTENDED PROBATION PERIOD? NOT SO FAST!

A recent Fair Work Commission decision highlights the need for employers to take care when terminating an employee following an extended probationary period.

In Natasha-Anne Werner v St Michael’s Association [2020] FWC 2896, the employer had extended the employee’s 6-month probation period for a further 3 and a half months. On the last day of the extended probationary period, the employee was dismissed. The employer wrongly thought that the employee was not protected from unfair dismissal because the employee was terminated before the end of the extended probationary period.

This is a common mistake.

The employee was still protected from unfair dismissal because the employee had worked for longer than the minimum employment period under the Fair Work Act 2009 (Cth) (FWA).

Under the FWA, an employee must be employed for a minimum of 6 months (or 12 months if the employer is a small business with fewer than 15 employees) to make an unfair dismissal claim.

An extension to the probationary period under the employment contract does not extend the minimum employment period under the FWA.

In finding that the employee had been unfairly dismissed, the Fair Work Commission considered that the employer’s whole approach was misguided. Rather than correctly considering whether the employee’s performance was poor enough to warrant termination, it wrongly asked whether her performance was good enough to retain her job.

The dismissed employee was awarded $8,788.64.

Takeaways

Employers should take care when terminating an employee following an extended probationary period.

Extending the probationary period does not extend the minimum employment period under the FWA, therefore, an employer could still find themselves subject to an unfair dismissal claim if they do not comply with their obligations under the FWA.

If you are unsure about your obligations when terminating the employment of an employee, or if you believe you have been unfairly dismissed, contact Axia Litigation Lawyers today for expert advice, because – Every Move Matters!

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