People Dynamics Newsletter - People Matters
Issue 61, March 2010 | Back to Newsletters Index
PD News
February was even busier than we predicted. Laura flew non-stop along the east coast numerous times. We hope you are also busy and keeping well.
Regardless of how busy we are, we always like to hear from our clients. It may be a quick query that you don’t have the answer to or just an update to let us know how you are going, give us a call!
Do Probationary Periods still Exist?
Upon a recent address from our lawyers, we have some updates for you in regards to the Fair Work Act (FWA) and clarification around some of the areas.
One of the most significant is the final draft of the Fair Work Act removed any mention of Probationary or Qualifying periods. Typically in the past you gave an employee a 3 month probationary period during which time employment could be terminated without any due reason or notice. Now however there is the minimum employment period.
The Minimum Employment period states that during the first six months of employment (for businesses with more than 15 staff) or the first 12 months (for businesses with less than 15 staff), an individual cannot make a claim to unfair dismissal. However, you are required to give them a week’s notice (as they are to you) before terminating the employment. If you do not, the employee cannot claim unfair dismissal, but they may make a complaint to the Fair Work Ombudsman who can issue a penalty under section 44 of the Act.
A probationary period can still be a contractual clause within your contracts and it is recommended so that you can both have a “try out” period. During this time the employee can be sacked without any reason or cause as long as notice is given.
We have had a number of queries in regards to six month probationary periods. Most lawyers would argue that it would need to be proven why a longer period is needed for the “try out” of the employee. If it can be justified, then agreeing to a six month probationary period (remembering that notice of one week needs to be given from either side) in the letter of offer is recommended.
Extending a probationary period once three months has expired leaves room for legal inconsistencies and issues and is not recommended.
Legal Update
A recent court case in Victoria saw an employer and several employees being fined to a total of $330,000 (including the highest ever fines issued to individuals) after the suicide of a young café worker. As a result, WorkSafe has recently started a new campaign to highlight the seriousness of workplace bullying. So it is now more important than ever to address harassment issues within the workplace. If you have any queries or would like more information on your rights as an employer or and employer, please do not hesitate to give us a call on 03 9077 4870.