Can My Employer Extend My Probation Period?

What is a probation period?

A probation period is a period of time at the beginning of your employment, usually specified in your employment contract, during which both you and your employer have the ability terminate the employment at any time. Probation periods allow both parties to assess the suitability of the candidate and the role, without imposing an obligation on your employer to warn you about your performance prior to deciding to terminate your employment. However, if you are terminated during your probation period your employer must still give you a minimum period of notice under the Fair Work Act 2009 (Cth) (“FWA”).

Can my employer extend my probation period?

It is possible for your employer to extend your probation period, but only in certain circumstances.

For example, your probation period can be extended where:

• Your original employment contract provides for an extension of the probation period; or
• Your employer proposes an extension of the probation period and you agree.

Your employer cannot unilaterally decide to extend your probation period unless expressly provided for in your employment contract.

What effect will extending my probation period have on my rights?

Prior to the FWA, probation periods were often used to protect employers from unfair dismissal claims.

Today however, the FWA imposes a minimum threshold of time that you must have served with your employer before you will be eligible to make an unfair dismissal claim. The effect of this is to impose a statutory probation period during which your employer is protected from an unfair dismissal claim if they choose to terminate you.

The thresholds for making an unfair dismissal claim are as follows:

• If your employer employs less than 15 employees, you must have been employed with them for 12 months; or
• If your employer employs 15 or more employees, you must have been employed with them for 6 months.

If your employer extends your probation period beyond these timeframes it will have no effect on your ability to bring an unfair dismissal claim because the unfair dismissal provisions cannot be displaced by an agreement between yourself and your employer.

What can I do if I am terminated during my probation period?

It is important to understand that the FWA does not impose a threshold of time served with your employer in order to make a claim for unlawful dismissal. This means that if you are dismissed on the basis of a protected attribute such as race, sex, religion or pregnancy during your probation period, you retain the same right to make an unlawful termination claim as any other employee.