ARTICLE · 25 SEPTEMBER 2008

Why Is Probation Still An Issue?

Moray & Agnew

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A significant number of decisions by the Australian Industrial Relations Commission (AIRC) still concern whether an employee was excluded from making an unfair dismissal application because they were on probation.

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A significant number of decisions by the Australian Industrial Relations Commission (AIRC) still concern whether an employee was excluded from making an unfair dismissal application because they were on probation.¹

Why is termination during probation still in issue?

Qualifying period v probation

The answer appears to lie in the fact that the Workplace Relations Act 1996 (the WR Act) distinguishes between a 'qualifying period of employment' and a 'period of probation'.

An employee cannot make an application for relief in relation to termination of employment on the ground that the termination was harsh, unjust or unreasonable (unfair dismissal) if the termination took place within a qualifying period of employment.²

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