Minimum Employment Period
One of our clients recently asked this question…….We have employment contracts in place with all of our employees which have a clause relating to the Minimum Employment Period (commonly known as the Probation Period). If we terminate an employee within the ‘minimum employment period’, are we obligated to give a reason for the dismissal?
If not, is it advisable to do so anyway?
An employer is not obliged to give reasons for the purposes of unfair dismissal law as the employee has not been employed in excess of the minimum employment period and, consequently, does not have access to the unfair dismissal jurisdiction.
However, if the employer does not give a reason, the employee might seek other available remedies relating to their dismissal. This might include them going to the Fair Work Office and potentially claiming adverse action under the general protections provisions of the Fair Work Act.
The general protections provisions of the Fair Work Act are intended to protect an employee from adverse action (which include termination by the employer) relating to:
- A person’s “workplace rights”, i.e. entitled to benefits under an award/agreement or an Act, including workplace health and safety laws, undertaking proceedings against the employer;
- Freedom of association (including the right to join, or be represented or not represented by industrial associations; or to engage in lawful “industrial activities”);
- A person from workplace discrimination, or
- Provide remedies where the protections have been contravened.
Other protections include an employer must not dismiss an employee who is temporarily absent from work due to illness or injury. For example, if the employee was dismissed because of a temporary absence from work due to illness or injury, the Fair Work Act provides protection from dismissal for the first three months of such an absence. This protection is provided under general protections provisions. For example, if the employee is pregnant, they may suspect their pregnancy was the reason for their dismissal.
Another issue for employers with respect to general protections applications is reverse onus of proof. The reverse onus of proof is significant in that the employer must, by leading evidence, exclude the possibility the termination happened because the employee had a workplace right or exercised a workplace right.
A person may make application to the Fair Work Commission (FWC) claiming a breach of the general protections provisions. If mediation before the FWC does not successfully resolve the matter, an application can be made to the Federal Circuit Court or the Federal Court.
Because of the potential consequences for the employer resulting from a general protections claim, it is always prudent to detail the reasons for a dismissal to the employee, based on objective criteria.
Lisa Lee, Human Resources Manager, can assist with advice on how to communicate with your employee and terminate their employment contract.
Got a question?
Email Lisa at [email protected] or phone the office on 07 4638 3599 to make an appointment for a free, no-obligation chat to discuss your obligations with Lisa Lee.
Lisa is the Human Resources Manager at Classic Recruitment & Human Resources and she can make sure you don’t miss anything!
She can also help you review your wages, draft appropriate employment contracts and ensure you meet all of your obligations.