Employers should exercise caution when dismissing during probationary period

The recent Federal Court decision of Dabboussy v Australian Federation of Islamic Councils is a warning to employers to consider the importance of timing if dismissing an employee during probation.

If that dismissal is close to the end of the minimum employment period for the purposes of unfair dismissal (generally six-months, or 12-months for small business), the decision will be subject to scrutiny. The Court may presume the decision was undertaken to prevent the employee from exercising a workplace right. If so, the dismissal will contravene the general protections regime in the Fair Work Act (FW Act).

By way of background, in Qantas Airways Ltd v Transport Workers Union of Australia, the High Court considered whether future workplace rights were protected by the general protections provisions of the FW Act. The Court referred to a dismissal which prevented an employee from meeting the minimum employment period as a potential contravention of the general