Introduction, the hiring process
While the probation period may be difficult, they are ultimately an important and integral part of the hiring process for both employees and employers. If they were to be changed or removed there is no doubt that something of similar effect would take its place. While it gives employers (who are already the more powerful party in an employee-employer relationship) more power, the concept of a probation period is generally unfair.
If changes were to be made providing a system to keep employers accountable would be the most logical alteration. Or change the foundation of what is considered a probation period to fit more types of business outside big and small. Probation periods is it fair? can happen to any of us.
Purpose of Probation Periods
The purpose of a probation period is that it allows employers to gauge the performance and attitude of new employees to ensure they are a good fit for the business. This can be graded against a new employee’s knowledge of the work. How they work in team settings. Whether they get along with everyone’s personality, or other key criteria that the company deems important. Within a company a probation period usually runs for 3 to 6 months. however it can be extended with the prior to joining the company approval of the employee.
Regarding the Fair Work Commission (FWC), the first 6 months of any role in a new business is considered the ‘minimum employment period’, which works effectively similar to a probation period. If there are less than 15 employees (therefore a small business) the minimum employment period is extended to 1 year. Within the minimum employment period no unfair dismissal claims can be brought to the FWC. Giving the employer the legal power to dismiss employees with no warning or reason. However, a non-toxic workplace will often provide a reason and weeks’ notice to help the employee move along.
There should be no confusion, part-time and full-time employees still accrue all of their entitlements (annual leave etc,) during the probation period/ minimum employment period. If employment is terminated, then any accrued entitlements will still be paid to the employee.
How probation periods effects employers
Employers will clearly receive the benefits of a probation period if the employee they have decided to hire does not suit the role as intended. Providing an extra layer of security to minimise the risk of hiring new staff. This is helpful when faced with the risk of an employee lying on their resumes in order to make themselves more appropriate for the role. Or an employee’s attitude or work ethic does not reflect the core values of a business.
However, the argument is that a company should not need 6 to 12 months (depending on the size) to decide if an employee can do the role or ‘a good fit’. After the first 3 months an employer should have a good grasp on the employees’ capabilities. Any issues after that will be for a specific reason where a business should be required to follow the necessary dismissal obligations under s 387 of the Fair Work Act 2009 (Cth) (the ‘Act’).
Especially for small businesses, where management will typically have more face-to-face time with new employees than big businesses. If an employee cannot perform their role after 10 months then that should be considered a performance issue under s 387(e) of the Act. Where the employer is required to provide the employee with warnings or some kind of notice that their performance is not satisfactory. Otherwise, any small business can choose to neglect an employee, under train them, give them ridiculous jobs, and fire them prior to a year with no repercussions.
Employer decides they don’t like you
Clearly unfair to the employee as it was from no cause of their own if, for example, an employer decides not to personally like an employee. If there is a specific reason as to why an employer does not like an employee they should be obligated to comply with the Act prior to 6 or 12 months. And if the employer does not, then allow the employee an opportunity to go to the FWC and lodge an unfair dismissal claim. By keeping employers more accountable for their actions there should be less opportunity to take advantage of employees and not face repercussions from it.
Unfair the Employer holds the Probationary power to Dismiss
If an employer is forced to terminate an employee within the probation period the effects of losing a single new employee is hardly comparable to an employee losing their (typically) main source of income. The repercussions of dismissing a new employee, who most likely is the least experienced, would result in having to go through the hiring process again.
While cumbersome and is most likely to disrupt the workflow of the business, there is less indication that dismissing a single employee will drastically affect a company long term. Therefore, it is entirely unfair that the employer holds the probationary power to dismiss an employee and face no legal repercussions if the employee was treated poorly, and likely face no internal long-term issues.
How probation periods effects employees
There is a distinct difference between the struggle of a company losing an employee and an employee losing a source of income when the world is becoming more expensive every day. It is not the responsibility of a company to ensure that their employees are financially stable. However, it is unfair that employees do not receive more protection and job security when the alternative can result in homelessness, debt, or an inability to find another job.
An employee will never have the same power as a large international company. Therefore it seems unreasonable to allow them 6 months’ worth of power to hold above an employee’s head, the opportunity to threaten their livelihood, through a probation period.
The effects on small businesses are inherently different. While an employee may lose their livelihood if they lose their job, small businesses can also be proportionally at a loss if they pay an employee who is ruining the business. Depending on the ownership, a small family run business may not also affect the owners but their entire family if the entire business fails. In the way that a job is an employee’s only source of income.
Small business issues
A small business has the potential to be a family’s only income. Therefore, for small businesses and employees a probation period is fairer, compared to a big business. However, an employer does not have to ensure an employee’s financial stability and an employee is not responsible for the integrity of a small business. While there should be protections for small businesses, there is no reason why it has to be at the jeopardy of the employee’s job security for the initial 12 months.
What can employees do if they are unfairly dismissed?
Fortunately, employees within their probation period are protected by some laws if they are unjustly sacked. While they cannot access unfair dismissal claims, they do have the opportunity to lodge a claim called General Protections. There are general protections with dismissal (F8 Form) and without dismissal (F8C Form). This claim protects employees who have exercised their workplace rights and as a punishment their employer has placed them in an adverse position.
This is most commonly seen by employees who have exercised their workplace right to complain about something that is relevant to their course of employment. (pay, hours, bullying, harassment, etc,), Rather than fixing the problem the employer will sack the employee in order to remove the complaining. This is a staple action done by toxic workplaces that are too lazy to help their employees. Other actions that constitute adverse action include injuring an employee. Or altering an employee’s position to their detriment. Unlike unfair dismissal claims, a dismissal is not always necessary to lodge a General Protection claim.
A General Protections claim can also be lodged if an employee has been fired due to a protected feature or attribute. Otherwise known as being discriminated against. Protected features and attributes can include characteristics such as age, gender, race, sexual orientation, family responsibility, pregnancy, religion, and more. To be discriminated against means that an employee was treated worse than other staff due to one of these features. It is not enough to just be treated differently or expect special treatment and not receive it.
General protections are more accessible
General Protection claims are helpful as there is no employment minimum or financial cap in order to lodge this claim. This makes it more accessible for employees who work in toxic environments. However, the biggest caveat is that if there are issues a General Protection claim relies on the fact that the employee disclosed the issue to their employer. Otherwise there would be no way for an employer to know to fix or change anything if they are not informed of the problem first. Lastly, if an employee had not recently exercised a workplace right and were terminated without reason or warning then there are unfortunately no other protections to help the employee.
Note, that there is a strict 21 day limit from the day an employee has been notified of their dismissal to lodge any FWC claim. If an employee is still employed but wishes to lodge a General Protections claim without dismissal then there is no time requirement when lodging.
Changes that should be made
The current probation period system is unfair due to the skewed power dynamic between employers and employees. In order to provide more fairness one recommendation could be to lower the minimum employment period threshold at the FWC to 3 months for large businesses, and 6 months for small businesses. This would theoretically alter the industry standard probation period to shrink.
Importantly, it would provide greater protection for employees and their livelihood. 3 and 6 months should be adequate time for an employer to grasp whether the employee would be suitable for their role and for the company. After those 3 and 6 months there needs to be greater accountability and responsibility to set up the employee with the greatest chance for success. Including providing warnings, providing adequate training, or mentorship, if required.
In order to provide more accountability companies should have to provide a government body their reasons for dismissing an employee during their probation period. While for most there will not be any differences or repercussions. The goal would be to monitor toxic companies who abuse the probation period system.
For example, those who will repeatedly sack employees a day before their probation ends. Or manipulative employers who personally dislike an employee and terminate their employment as a way to be cruel. This way toxic companies face repercussions for their actions when the employee may have been too scared to complain and would not be able to lodge a general protection claim otherwise.
Greater consideration of business size
Lastly, there should be greater consideration for the different types and sizes of businesses. How they interact with a probation period. A big and small company are too broad of categories as a business with 20 employees and 2,000 employees are drastically different despite both being considered large businesses. The bigger the business the less power they should have to terminate an employee for no reason. As it is statistically less likely for any one employee to drastically affect a big business.
Compared to a small business that would more heavily rely on their limited workforce. Where one poor employee will have a more drastic effect. While these recommendations are unlikely to occur anytime soon, there does have to be an acknowledgement that the most vulnerable employees are placed in an extremely unfair position. Without change employees will continue to be taken advantage of.
Conclusion to: Probation Periods Is It Fair
It is easy to see how there is a power imbalance between employers and employees. A probation period that prohibits employees from accessing the FWC and removes any job certainty is a prominent example. While for most there are not any issues within their probation period, there has to be mechanisms in place to protect employees who are unfortunate enough to work in toxic companies. Or are taken advantage of. For the moment their workplace experience relies on luck, which is entirely unfair.
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