At Workwise we are often asked questions by members about the use of probationary periods within their workplaces for new staff. Typically we often see this terminology being applied to new ‘casual’ employees as well………..wrong!! Let’s look at this a little more closely.MB900387775

First of all the Fair Work Act itself as it applies to Federal system employers is silent on the use of probationary periods, having said this they still feature prominently in employment contract documentation and are still lawful. The FW Act deals instead with two statutory periods of time where employers have protection from an unfair dismissal claim (UFD). This is 12 months for employers with less than 15 staff and 6 months for employers with 15 or more staff. It is increasingly common practice for contract documentation to adopt a standard 6 month period for the use of the probationary period whether a large or small employee.

Probationary periods of employment are not really applicable to casual engagements, this is because the notice period for a casual is one hour and if a casual employee is unsuitable then you can simply invoke termination. Casual employees have no power to take an UFD in either the Federal or State jurisdictions. However we are seeing many employers opting to engage new staff on a ‘trial period of employment’ basis as a casual, employer’s should also be mindful that the trial period should be limited to a few weeks only, especially as the working hours on this basis are more likely to be fulltime or part time.

Remember that a probationary period of employment can only be utilised from the first date of employment of a new employee, we often see employers and managers requiring a ‘probationary period’ of employment for existing staff (who are well into their employment term) upon being offered a promotion or higher duties position subject to ‘probation’. This is incorrect, and employers should instead offer a ‘trial’ period of employment in the new role and make sure this is in writing with a specified period for the trial and some clear success measures established so that your employee understands what needs to be achieved during that time. The use of the word ‘probationary’ in these circumstances is misguided and has no application when you understand the term fully.

Another question with regard to casual employees relates to their Long Service Leave accrual once they are appointed on a more permanent basis. LSL accrual would be calculated from the date the employee started work (including their time as a casual employee) whilst annual leave and personal leave accruals would start only from the date they changed their classification to fulltime or part time. This is because casual employees are paid a casual loading in substitution of payment for all forms of paid leave (yes casuals DO accrue LSL!). Don’t forget that if an employee changes their classification eg casual to fulltime, they should also complete a new Tax Declaration From to replace the original one where they indicated they were a casual employee.

Finally our experience tells us that many employers are really bad at appraising their probationary staff to assess their suitability for ongoing employment. Use this period wisely, have a formal performance management plan set up and understood by the parties, meet regularly with your employee and keep written records to support your decisions. Follow up in writing to the employee after any counselling meeting good or bad – you might be surprised at the number of times we get a call requesting assistance in terminating or managing an employee who has just completed their probationary period!

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The information contained in this article does not constitute and should not be relied upon as ‘legal advice’. Workwise recommends that legal advice be sought from a suitably qualified legal practitioner prior to any action being taken. Such advice may be accessed via Workwise.

STOP PRESS – Workwise will shortly be presenting a ‘Breakfast Seminar’ on the 12th August in Bunbury with special guest speaker ‘Tony Beech’ retiring Chief Commission of the West Australian Industrial Relations Commission. Other than the cost for a plated breakfast this presentation is complimentary for all Workwise members. Watch out for your invitation which will be sent out very soon.FBThumbsup