My employee is within their probation period – I can just terminate, right?
Terminating within an employee’s probation period should be a simple and pain-free exercise. After all, that’s what probation periods are for, right?
Well…. yes. And no.
There can be issue arising when terminating an employee within their probation period if they have recently exercised a workplace right such as making enquiries about their pay, taken a period of sick leave, joined a union, advised you of a disability or mental illness that they suffer from, requested flexible working arrangements, made a complaint about their treatment at work and so on.
If you terminate an employee after they have exercised a workplace right they could make a claim for adverse action.
An adverse action claim is similar to an unfair dismissal case in terms of how it’s handled (initially by a Fair Work mediation), however there are some fundamental differences:
- Unlike an Unfair Dismissal claim there is no cap on the amount of compensation that can be awarded (Unfair dismissal is 6 months)
- The onus is on the employer to provide proof that the termination was not due in any part to the employee exercising their workplace right. Essentially, the Fair Work Commission will assume that you took the adverse action for an unlawful reason unless you can prove that you didn’t. Rather than the employee having to prove that that you took the action for an unlawful reason, you must prove that you did not.
In recent years, adverse action claims against employers have been steadily increasing. It seems that employees are turning to adverse action claims when they feel that they can't make an unfair dismissal claim.
In fact, a recent decision illustrates the cost of an adverse action claim. The Fair Work Ombudsman secured a significant penalty of $115, 668 against the owner who terminated an employee simply for exercising his workplace right to ask questions about his roster with the case uncovering additional employment breaches.
Clarity is a Must
So, before you make the decision to terminate an employee on a probation period, make sure you are very clear on the reasons for the termination and make notes on this in case you need to fall back on them at a later date. Also be aware of the timing of the termination. If an employee has exercised a workplace right, address the matter so that it is clear that it is not connected to the employment termination. You can then move forward with the planned termination as a separate and distinct matter.
Minimum Employment Terms
And remember – regardless of whatever probation period you include in your employment contracts, you still have to comply with the ‘minimum employment terms’ as set by Fair Work; less than 15 employees this is 12 months, for more than 15 employees this is 6 months. Outside of those periods, despite your internal processes and agreements, a terminated employee will still have the right to make an unfair dismissal claim if terminated.
If you need assistance with managing a termination at any time, don’t hesitate to call us so we can make sure you are meeting all of your employer obligations and safeguarding your business against real or frivolous claims.