Probationary periods are the non-negotiable loophole for employers to terminate and throw out any agreement you may think you have. Many employment contracts don’t mention that a probation period applies, so new employees automatedly assume it doesn’t apply to them. To some employers dismissing someone in a probation period is all part of a days work.
In some cases families move their entire lives across the country just for work. The failure or the successful completion of this period is crucial to determining the rest of their lives. During this period, the boss thinks they have absolute power. They simply do as they please. Employees live in fear of their workplace overlords and unnecessarily suffer in silence, many are bullied, abused, underpaid and in some cases sexually harassed.
Many employer’s think they can extend a probationary period at any time. In theory you could be stuck in probation for years. They can even be terminating you at any point without a legitimate reason. This is because the employee is under a “trial period” and subject to an undefined and broad criterion. This can include performance of the role, workplace behavior and some arbitrary assessments of workplace culture as well as ‘fitting in’.
Unless the employers ability to extend your probation is clearly set out in your employment contact prior to you starting employment, your probation period cannot be extended without your consent.
Such clauses should be deemed unlawful and subject to stringent review as they give the employer too much power making them judge, jury, and executioner. This dangerous power when left unchecked could dissolve all rights of the employee and lead to paid slavery. Many employers will bully, treat you like a indentured worker, personal slave, seeing what you will put up with before you get out of the probation period and have access to unfair dismissal rights.
What choices does the employee have, these are the non-negotiable terms and conditions that you must/ may submit to. The employer has your fate in their hands.
Completion of the Probationary period is the equivalent to bin day for employers.
At this point they must consider whether you would be of any further use to them or if you are past your use by date before being discarded like spoiled milk. The employer would most likely serve you with a letter of termination. Their very own ‘dear john letter’ and this time it is you, not them. A template copied and pasted with all the signs of corporate bureaucracy. An emotionless and generic letter that further patronises you with “we wish you well in your future endeavours”
Termination of employees often occur shortly after they exercise their workplace rights. This can include querying their pay rate, making a complaint, or even taking sick leave. Termination under these circumstances is an unlawful and a gross exploitation of their employees, employers will rely upon this knowledge and your lack-of to steal the advantage. As far as you’re aware you’ve got no chance. (you may be eligible to lodge a unlawful dismissal claim, know as a “General Protections Application”, check our GP page for more details)
The criteria for an ‘Unfair Dismissal’ application is a minimum service period of Six months for businesses with Fifteen or more employees and Twelve months for businesses with less than Fifteen employees. It is likely you will be dismissed before you reach either and for arbitrary reasons such as an alleged complaint by a customer or perhaps your failure to fit in with the culture.
However, you do not need to satisfy the minimum employment periods to be covered just to exercise your rights. Employees are protected under the section 340 of the Fair Work Act 2009. Section 340 allows employees to seek justice against their employers if they can demonstrate a link between their dismissal and their exercising of a workplace right.
The criteria for an ‘Unfair Dismissal’ application is a minimum service period of Six months for businesses with over Fifteen employees and Twelve months for businesses with less than Fifteen employees. It is likely you will be dismissed before you reach either and for arbitrary reasons such as an alleged complaint by a customer or perhaps your failure to fit in with the culture.
However, you do not need to satisfy the minimum employment periods to be covered just to exercise your rights. Employees are protected under the section 340 of the Fair Work Act 2009. Section 340 allows employees to seek justice against their employers if they can demonstrate a link between their dismissal and their exercising of a workplace right. Equally you cannot be dismissed for a discriminatory reason.
Thus becoming the Achilles heel in the employer’s impenetrable defenses. Employers hate this recourse / right that employees have and employer groups constantly lobby the Federal government to abolish this section of the Fair work Act
Employees deserve more respect in the workplace and these power imbalances unfortunately still exist today. Despite considering our society to be modern and forward thinking it is a shame that many employers continue to abuse and exploit many hard-working Australians just trying to earn a living. Such conduct is an affront to the Australian views and values and the fundamental concept of giving everyone a fair go. Probationary periods need further legislation and urgent reviews to stop employers from abusing their powers when deciding if Employees would remain with the business and make it unlawful for businesses to exploit employees without the intention of actual employment.
Its tough out there in Australian workplaces, the pandemic has created workplace / employment mayhem, not sure about your individual circumstances, or what to do, give me a call, I’m happy to help.