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How to Terminate an Employee During Probation

Termination

11 Dec 2023 (Last updated 17 Dec 2025)

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‘Probation’ is not a term used by the Fair Work Act 2009 (the Act). The Act refers to a Minimum Employment Period which is determined by the amount of time the employee has worked in the business and the size of the business. The minimum employment period is the minimum period that an employee must be engaged in the business before they may have access to an unfair dismissal claim if you terminate their employment.

For a small business with less than 15 employees this is 12 months, otherwise it is six months. During the minimum engagement period an employee may be terminated subject to written notice in accordance with the relevant provisions of the NES, the applicable industrial instrument or their employment contract. 

Many consider it is best practice for an employer to have a policy in respect of managing and possibly terminating employees during their probationary period. The first step, before the employee even starts work, is drafting an employment contract that clearly states the length of the probationary period including the start and the end dates, and specified in what circumstances the probation may be extended and how long for.

In the first week of employment, it is considered best practice to tell the employee what you expect of them in terms of skills, tasks, deadlines, and conduct.

Dismissing an employee during their probation period

Before the probationary period ends, you should meet with the employee and let them know whether they have passed probation. If they are unsuccessful, you can extend their probationary period if the contract, award or registered agreement allow for it or end their employment.

If you are ending their employment, it may be considered best practice to meet with the employee to provide feedback about their performance or conduct and explain why the probation period was unsuccessful.

Under the National Employment Standards set out in the Fair Work Act 2009, you need to give an employee written notice to end his or her employment. The written notice should specify the period of notice given (or payment in lieu of notice), and the date the employment will end. If they are outside the minimum engagement period, an additional process will be required. Call the Fair Work Helpline for Employers by Peninsula for free initial advice on terminating an employee outside of the minimum engagement period on 1300 761 935.

Always confirm the outcome of the meeting in writing to the employee whether they are successful or unsuccessful, and whether you are extending the probation or are terminating their employment, and  keep a copy as well as a written record of the discussion during the meeting.

Valid reasons for termination

If you choose to terminate an employee during probation it is best to, always provide a reason that can be supported with evidence if required.    

If the probation period has gone beyond the minimum employment period, the Fair Work Commission has determined that you should not dismiss any employee without a valid, sound, and defensible reason given the circumstances, and a fair dismissal process, in order to minimise the risks of a subsequent unfair dismissal claim. Valid reasons are varied and fall under four key areas:

  • Capacity – if the employee lacks the ability, or is incapable, of completing the inherent requirements of their role
  • Performance – if the employee’s skill level or quality of work is below what is required for the job, or if they are not meeting the standards outlined in their employment contract due to a lack of care or diligence;
  • Misconduct when an employee partakes in behaviour that is out of line with company policy, goes against the terms of an employment agreement, or is unlawful; or
  • Redundancy when an employer either decides they no longer need an employee’s job to be done by anyone, or the employer becomes insolvent or bankrupt.

Other reasons for dismissal may be valid if the employee does not have access to an unfair dismissal claim, provided those reasons don’t give rise to a general protections claim.

The Fair Work Act 2009 provides protection from dismissal for employees in various circumstances, including in relation to workplace rights, industrial action and discrimination, amongst others.

Notice and warning

Employees who are on probation have the same entitlements as a permanent full-time or part-time employee including wage entitlements, sick leave, annual leave, and notice. So once you have decided that you do not wish to continue their employment you should meet with the employee to inform them of the reasons that their probation is unsuccessful. You are required to give the employee sufficient written notification of the day their employment will end. The notice period varies, depending on how long an employee has worked within the business, and the applicable industrial instrument or employment contract. 

The employee can either work during the notice period or alternatively the employer must make payment of the notice in lieu, which is to be included in the employee’s final pay along with any other entitlements owing, which may include, but is not limited to, outstanding wages and unused (annual) leave entitlements.

Notice is paid at the employee’s full pay rate as if they had worked the minimum notice period, so payment in lieu of notice can include incentive-based payments and bonuses, loadings, allowances and overtime or penalty rates.

General protection and discrimination risks when dismissing an employee

The Act provides that an employee on probation can only bring an unfair dismissal claim after employment for a minimum of six months or 12 months for a small business employer with fewer than 15 employees at the time of the dismissal.  

In most cases, probation periods rarely go beyond six months. However, as an employer, it’s essential to keep the minimum employment period in mind when you decide to extend a probationary employee’s period of employment. If you extend the period of employment beyond the minimum employment period of six months or 12 months for a small business employer, and then terminate an employee, the employee may bring an unfair dismissal claim. This is different to a general protections claim.

An employee may be able to initiate a general protections claim regardless of the length of their employment if the dismissal is for a prohibited reason, so due to discrimination based on race, age, gender and other such attributes, or because the employee exercised a workplace right, for example.

Prohibited reasons include dismissal due to discrimination based on: 

  • Age
  • Disability
  • Gender
  • Marital status 
  • Pregnancy
  • Race
  • Religion
  • Sex and sexual orientation 

Employers cannot terminate employees for protected reasons whilst they are on probation, for example because they filed a work complaint, acted as whistleblowers, or made an enquiry as to their pay. 

As this is a complex area, it may be prudent to call us for free initial advice if you are considering terminating an employee during their probation period.

Contact Peninsula for free initial advice to help you manage your business and your new employees, to keep track of performance issues and employee entitlements.  

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Can You Fire Someone for Being Rude to Customers?

Running a small business demands high quality customer service or a positive experience. It can ensure return business, positive online reviews and word-of-mouth recommendations in your customer’s personal network. So, what do you do when an employee demonstrates poor, or in some instances, totally unacceptable customer service? Termination Terminating employees requires a well-structured, thought-out plan. Things to consider include are: how severe is the “rudeness”? is it brand damaging? is it going to impact your business long-term? is this a one-off or a regular or repeated behaviour? what is the context surrounding the employee’s behaviour? can it be considered serious misconduct? According to the Fair Work Ombudsman,serious misconduct can include: theft assault being drunk at work safety violations (to customers or co-workers) harassment the employee refusing to carry out lawful and reasonable instructions that are consistent with the employee’s contract of employment Depending upon the severity of the rudeness, you may need to terminate the employee. Remember though, when terminating an employee for serious misconduct, there are procedural steps that must be followed. If any one of these incidents have occurred and you’re not sure what the next step should be, make sure you contact Peninsula before speaking with the employee to avoid a costly unfair dismissal claim. If the rude behaviour is not severe enough to warrant serious misconduct, you might consider giving the employee a warning, or even a final warning, to avoid the behaviour recurring These warnings pave the way for a future termination if the behaviour continues and you do choose to terminate the employee. Ongoing management of the employee Sometimes, rude behaviour by staff, can be the symptoms of serious underlying problems that may exist in your business. If you suspect this to be the case, it may be useful to consider: Lack of training How to manage this: implement a consistent and on-going customer service training set clear expectations in Performance Management plans and workplace policies Low staff morale How to manage this: reassure and encourage staff to voice their concerns with their manager before things escalate encourage open communication within the team and make sure there are opportunities to foster constructive feedback ensure your managers are approachable Inconsistent / unclear expectations How to manage this: performance management plans are a fantastic way to track, measure and document employee performance and behaviour set clear expectations, goals and identify gaps in the employee’s skills / knowledge or training to avoid frustration or confusion Stress How to manage this: recognise and try to be aware of stressful situations employees may be experiencing outside of the workplace that could be impacting their performance of mental health during work hours offer open conversations with your employees to help support performance management. check in with your staff outside of management meetings – ask if they are okay or if there is something you can do to help improve their ability to work. These strategies are a fantastic way of managing “rude” employees, however, a proactive approach is always best. If an employee’s rudeness is severe enough, or can be considered serious misconduct, make sure you speak with a Peninsula Adviser on 1300 761 935 about employee performance management, how to avoid an unfair dismissal claim and implementing policies for future employees to follow.

Termination

Can I Terminate an Employee Who is Consistently Late to Work?

How do you deal with someone who is always late? Depending on your specific attendance policy, a consistently late employee can be very damaging to your business. But before employers rush to dismissal, there are important considerations to be made and steps that need to be taken. Some of these factors can include the individual circumstances of an employee, their length of service with the company, or a multitude of other issues which could reasonably explain their lateness. Given these issues, it is vital employers follow an appropriate process before dismissing an employee based on constant lateness. 1. Warnings to employees for being late An employer must ensure that the employee is aware that there is a problem in the first place so a series of warnings should be used. Depending on what is in the employee handbook, or in any relevant workplace policy, an employee should be warned at least once in writing before dismissal is even considered.  The warning to the employee should be clear and include all relevant details, explain what improved behaviour is expected, and emphasise the severity of the misconduct (the constant lateness). While arriving late consistently may not be considered serious misconduct, the repetition of the behaviour can be grounds for dismissa. Given it is the repetition that will lead to dismissal, warnings and documentation are vital and will be the safeguard against an unfair dismissal claim should the terminated employee lodge one in the Fair Work Commission. 2. Counselling procedure Regularly being late can be symptomatic of a deeper problem for the employee in question. The employee could be taking longer to leave in the morning to spend time with a relative who is sick, the employee could be experiencing depression, or there may even be an issue of substance abuse. Discussing the lateness can be an effective way of addressing the conduct in the first instance. Discussing any reasons for this conduct can identify personal issues which may be the cause. If this is the case, counselling should be provided to the employee and all care taken to ensure these personal issues are not considered in any employment decision. 3. Communicate with your employee At every point in the process of rectifying the conduct, or dismissing the employee, employers need to be in contact. Whether it is sending emails asking for the lateness to be addressed or making contact (by phone or in person) to discuss if there are any personal issues having an impact, the more effort employers put into giving the employee chances to change their behaviour will lead to a much more favourable outcome. As is the case with terminating any employee, careful consideration of the reasons and the process being undertaking must be given. Peninsula is on hand to provide guidance and support with warnings, and, if necessary, in dismissing an employee. Contact the Peninsula Advice line on 1300 761 935.

Termination

Struggling with Staff Termination?

If you decide to end your employee’s employment you need to know when and how to end it. If the employee is employed under the National Workplace Relations System, then you need to abide by the National Employment Standards (NES) as well as any industrial instruments governed by the Fair Work Act 2009 (the Act). This means you need to consider any applicable award or registered agreement, as well as the employee’s employment contract. Below are a few tips for terminating your employee in accordance with the Act. Check how long the employee has been employed The Minimum Employment Period depends on the amount of time the employee has worked in the business and the size of the business. If an employee has been employed for longer than the appropriate minimum period, they may have access to an unfair dismissal claim if you terminate their employment. 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Termination

How to Successfully Manage Offboarding

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This can be a lot of work, especially when HR teams are already stretched thin.  It’s uncomfortable: Some businesses may avoid offboarding because it involves difficult conversations, such as exit interviews. They may also worry about upsetting departing employees, especially if they are leaving under negative circumstances.  No matter how time-consuming or awkward an offboarding process might be, make sure you follow it with every departing staff member.   To return to the ocean voyage analogy, neglecting offboarding and making an employee’s last days a painful experience is a little like asking them to walk the plank!  How does offboarding help businesses?  1: Minimise disruption to the business  A well-managed offboarding process can help to minimise the disruption caused by an employee’s departure. 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It should be clear to both the employee and the manager what needs to be done and when it needs to be done by. The offboarding process should also be flexible enough to accommodate the individual needs of the employee.  10-step offboarding checklist  Stay in communication: Don’t abandon them just because they’re leaving. Early in the process, send an offboarding email outlining the process for the final weeks. Stay closely involved throughout the process, offering support and guidance.  Capture institutional knowledge: Before your employee goes, work with them to document their workflows, processes, and relationships. This will help ensure that their work is transitioned smoothly to their replacement.  Stay on top of administrative tasks: Offboarding requires a lot of paperwork and administrative tasks. Check in with your HR and legal teams to confirm they have everything they need, from resignation letters to non-disclosure agreements.  Collaborate on a staff announcement: Write a coordinated statement with your employee to announce their departure. This gives them the opportunity to say goodbye to their colleagues in a way that feels right to them.  Set up an exit interview: Exit interviews provide valuable feedback on the company culture, employee experience, and areas for improvement. Encourage your employees to be as honest and open as possible with their feedback.  Develop a temporary plan: If there’s no new hire to replace your employee right away, you’ll need a temporary plan to cover their work. This may involve delegating tasks to other team members or deferring non-essential work.  Hire a replacement employee: Start the hiring process as soon as possible so that you have enough time to find the right person for the role. If possible, overlap the new hire’s start date with the departing employee’s end date so they can collaborate on a seamless transition.  Revoke access to company accounts: The manager should revoke the employee’s access to company accounts, such as email, social media, and customer relationship management (CRM) systems. This should be done on the employee’s last day of work.  Collect company equipment: The employee should return all company equipment, such as laptops, phones, and building access cards.   10.Stay in touch: As much as possible, make sure you keep in contact with your old employees once they’ve left. You never know when you might benefit from maintaining the relationship. Plus, the warmer you are toward them, the more likely they are to act as brand ambassadors. Final notes on offboarding  As well as helping you complete all the important paperwork and collecting company equipment, offboarding is a bit like saying goodbye to a friend. 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Termination

Can You Terminate a Whistleblower?

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In legislation, a whistleblower is someone within, or with a connection to, a company or organisation who raises concerns or questions about ‘misconduct’ or  ‘improper states of affair’ within that same organisation. Misconduct or improper states of affair will depend on the circumstances, however, can include behaviours such as theft, fraud or gross mismanagement. This will also include information about the company or organisation, or an officer or an employee of the company or organisation, engaging in conduct that: breaches the Corporations Act 2001; or breaches other financial sector laws enforced such as the Australian Securities and Investments Commission (ASIC) – for more information please seek professional advice; or breaches against any other law of the Commonwealth that is punishable by 12 or more months imprisonment; or represents a danger to the public or financial system. Whistleblowers can include current or former employees, officers, contractors and superannuation trustees. Spouses and relatives of these individuals are also covered under the whistleblower ‘protection regime’. Why are whistleblowers important? Whistleblowers play an important role in identifying and calling out potential harm to consumers and the community. Under whistleblower protection legislation, a whistleblower must have ‘reasonable grounds’ to suspect that the information they are disclosing about the company or organisation concerns: misconduct; or an improper state of affairs or circumstances. Note: Misconduct will not be limited to misconduct as defined by your own policies and should be considered more generally.    Which laws protect whistleblowers? The Corporations Act 2001 grants certain individuals legal rights and protections as whistleblowers. 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Possible risks associated with termination of a whistleblower could include, but are not limited to: General protections claim: The Fair Work Act 2009, protects individuals from adverse treatment for actions like exercising a statutory right to make a complaint or inquiry about their work conditions, environment or employer. Therefore, terminating an employee, for speaking out could be against the Fair Work Act 2009 and could result in the employee lodging a costly and drawn out claim against you and the business. Negative effect on workplace culture and employee morale: Employees who witness poor treatment of colleagues, may be less inclined to make reports of future poor behaviour or processes within a workplace. It is recommended that you seek professional advice, and plan carefully to help mitigate unwanted negative effects on other staff, organizational culture, and consider unwarranted publicity or reputational damage. Possible reinstatement: In certain circumstances, an employer may be ordered to reinstate an ex-employee into their original position or a comparable position within the organisation. Apology to whistleblower: In certain situations, the person, company or organisation that caused detriment or made a threat may be ordered to apologise formally. Whistleblower policy in Your workplace 1.Implementing a Policy Only certain companies are required to have a whistleblower policy by legislation. However, business owners should still ensure whether their business fits these requirements. If you are required to have a policy in place, it must contain information about: the protections available to whistleblowers; how and to whom an individual can make a disclosure; how the company will support and protect whistleblowers; how investigations into a disclosure will proceed; how the company will ensure fair treatment of employees who are mentioned in whistleblower disclosures; and how the policy will be made available. 2.Give Staff Training Although not a requirement, businesses which are required to have and identify how they will communicate a whistle blower policy, should consider training their staff in the policy. Best practice training will include education for senior managers, offices and others authorised by the company to receive disclosures from whistleblowers (e.g. Compliance officers), and how their roles may specifically intersect with legislation. It will also include training all staff on the whistle blower policy. This program should go cover the basic of the legislation, as well as how your whistleblower policy operates within your business. Get total HR and WHS support Peninsula has worked with Aussie businesses for years, providing them with tailored HR and WHS advice and resources. Our team works with you to find solutions that work for your business and employees. Chat with us today to find out how we can help you.

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