Rights and Responsibilities During Probation Period in Australia

In Australia, a probation period is a standard feature in many employment contracts. It serves as a preliminary phase during which both the employer and the employee assess the suitability of the working relationship. While probation is often perceived as a trial period, it is governed by the same employment laws and standards that apply to all workers under the Fair Work Act 2009.  

This article outlines what the probation period in Australia means, the rights and responsibilities of both employers and employees, common misconceptions and best practices for managing probation period smoothly.   

What is a Probation Period? 

A probation period is a defined timeframe at the beginning of an employment relationship, typically ranging from 3-6 months. During this time employers evaluate whether the employee is a good fit for the role, while employees assess whether the job and workplace meet their expectations. Probation periods must be clearly stated in the employment contract, including their duration and any conditions attached.

Rights & Responsibilities During Probation  

Both employee and employer have some fundamental rights as well as responsibilities during the probation period to ensure compliance with workplace laws and to foster a fair and transparent system.  

• Employee Rights: Employees on probation retain the same minimum entitlement as any other employee in Australia. These include: 

• • • Minimum wage and conditions: Employees must receive at least the minimum wage and entitlements under the relevant award or agreement. 

• • • Leave entitlements: Full-time and part-time employees accrue annual leave and personal/carer’s leave during probation. 

• • • Protection against discrimination: Employees are protected from unlawful discrimination and adverse action under the Fair Work Act. 

• • • Notice of termination: Employees are entitled to notice or payment in lieu if their employment is terminated during probation. 

• • • Final pay and entitlements: Upon termination, employees must receive all accrued entitlements, including unused leave. 

• • • Fair Work Information Statement (FWIS): Employers must provide this document at the start of employment, outlining employee rights under the National Employment Standards (NES). 

• Employee Responsibilities: While on probation, employees are expected to perform their duties to the best of their abilities. Employee responsibilities include:  

• • • Understanding job expectations: Employees should seek clarity on their role and performance criteria which is usually outlined in the employment contract. 

• • • Engaging with feedback: Employees are expected to accept and act on feedback constructively. 

• • • Demonstrating professionalism: Punctuality, reliability, and a proactive attitude are key during probation. 

• • • Maintaining communication: Employees should communicate openly with supervisors about challenges or uncertainties. 

• • • Adhering to workplace policies: Compliance with company policies, safety procedures, and codes of conduct is essential. 

Failure to meet these expectations can lead to termination during the probation period. Therefore, it’s crucial for employees to understand their responsibilities.   

• Employer Rights: During the probation period, employers also have certain rights, including the ability to: 

• • • Assess suitability: Employers have the right to evaluate an employee’s performance and cultural fit. 

• • • Terminate employment: Employers may terminate employment during probation, provided it is lawful and notice is given. 

• • • Set performance standards: Employers can define and enforce performance expectations during probation. 

•  Employer Responsibilities: While employers can assess and terminate employment during probation, they also carry obligations, such as:

• • • Clear communication of expectations: Employers must outline job duties and performance criteria from the outset. 

• • • Providing feedback and support: Regular performance reviews and constructive feedback are essential. 

• • • Managing underperformance fairly: Employers should follow a structured process, including documentation and improvement plans. 

• • • Complying with legal obligations: Employers must ensure probationary employees receive all entitlements under the NES. 

• • • Conducting fair termination: Terminations must be lawful, documented, and accompanied by appropriate notice or payment. 

Common Misconceptions about Probation 

There are several myths around probation periods that need clarification: 

1. Probation means no rights: False. Employees on probation have the same legal protections as any other worker.  
2. Termination can be done without notice: False. Notice (or pay in lieu) is required unless dismissal is for serious misconduct.  
3. Probation can be extended indefinitely: False. Extensions must be reasonable – meaning it should be based on valid business or performance-related reasons and not used to delay access to employment rights. The extension must also be mutually agreed upon by both parties and documented in writing. 

End of Employment during Probation 

Both employers and employees can end the employment during probation period. Afterall the objective of probation is to mutually evaluate whether the employee and employer are the right fit as per each other’s expectations. However, this should be done lawfully and fairly. 

• Resignation: Employees can resign during probation, often due to a better offer or misalignment with the role. Key considerations are: 

• • • Notice requirements: Employees must provide notice as per their contract or award. 

• • • Professional conduct: Resignation should be communicated in writing and handled respectfully. 

• • • Final entitlements: Employees are entitled to payment of accrued leave and any other applicable benefits. 

• Termination: Employers may terminate an employee under probation period, but they must follow lawful procedures: 

• • • Written notice: Required under the contract or relevant award. 

• • • Unfair dismissal protections: Employees can lodge a claim if they meet the minimum employment period (12 months for small businesses and 6 months for large businesses). 

• • • Final pay: Must include wages owed, unused annual leaves, and other entitlements.  

Best Practices for Managing Probation 

• For employees: 

• • • Clarify expectations and responsibilities early. 

• • • Demonstrate adaptability and openness to feedback. 

• • • Communicate challenges proactively.  

• • • Understand entitlements and seek advice if rights are breached.  

• For employers:  

• • • Define probation terms clearly in contracts. 

• • • Provide structured onboarding and training. 

• • • Schedule regular check-ins and reviews. 

• • • Document feedback and performance. 

• • • Approach termination with fairness and compliance. 

Probation Cheatsheet

Probation period in Australia infographic – a guide for employers and employees

Support Channels

If you’re an employee and believe your rights during probation have been breached, support is available: 

• Fair Work Ombudsman – Offers free advice and assistance on workplace rights. Visit Fair Work 

• National Legal Aid – Provides legal help for eligible individuals. Visit the website to find out specific resources/agencies to your state. 

• Unions – If you’re a union member, your union can offer representation and advice. 

• Community Legal Centres – These centres offer free legal advice across Australia. Find a CLC 

Seeking advice early can help resolve issues before they escalate. If you are an employer who need support navigating probation processes fairly and lawfully, reach out to us directly for tailored guidance.