How to be more proactive than relying on the minimum employment period?

|blog industrial-relations

Some of you may be more familiar with the term ‘Probationary Period’.  Prior to the introduction of the Fair Work Act 2009, the term used was ‘qualifying period’.  Regardless of the qualifying period, it used to be that employees serving a probationary period were not able to access unfair dismissal.  Regardless of the term used, a probationary period is typically used to assess if the employee is suitable for the role and the business.

With the introduction of the Fair Work Act 2009 came the term ‘minimum employment period’.  As employees serving a probationary period are no longer excluded from access to unfair dismissal laws, the term ‘probationary period’ has largely lost relevance and the focus has shifted to the ‘minimum employment period’.

Under the Fair Work Act, an employer can terminate an employee’s employment for any reason within a ‘minimum employment period’ without unfair dismissal laws applying.  Caution must still be taken however, as there are other prohibited reasons for termination which still apply during the minimum employment period.

The minimum employment period is:

  • 12 months for an employer that employs less than 15 employees, or
  • 6 months for an employer that employs 15 or more employees

Despite the loss of legal relevance, the term probationary period is still used in employment contracts as people generally understand what that means.  They don’t necessarily understand (as yet) what a minimum employment period means so.   there are times when it is not that easy to understand and, at times, understanding the minimum employment period and its implications can even be complex.

However, the point I am trying to make here is, do we need to rely on a minimum employment period for the purpose of assessing whether someone is suitable for the role and the business?

The recruitment phase is used to do just that.  However, this can be done through psychological assessments, various other employment testing, effective interviews and reference checking.  Whilst it may not be always 100% accurate, it does go a long way to assessing suitability to the role or the business.

Yes, it might seem easier and less risky, and I do completely understand that, if you are in the unfortunate position of having to dismiss someone who is relatively new – one that you have invested time into recruiting and inducting, I do understand that it may feel easier to simply rely on the minimum employment period to assess new recruits as there is little or no risk.   If you seek advice and treat people morally right (by this I mean communicate with them and give them an opportunity to improve before terminating their employment) there should be no reason to have to rely on the minimum employment period.

I am not suggesting that you don’t dismiss during this time.  You need to dismiss at any time if someone is not performing and you have been through a process.  If you are relying on the minimum employment period and having to terminate someone during that time, there is something wrong, with them or with what you are doing.   If you are relying on the minimum employment period and it is for nothing that you have done wrong, and you have communicated with them, then you don’t need to rely on the minimum employment period – your process will stand up to scrutiny and the dismissal won’t be unfair.

For a simple, uncomplicated scenario assuming no other issues are surrounding (hence the suggestion of seeking advice) in considering whether a dismissal is unfair or not the following points are considered;

  • Was there a valid reason for the dismissal?
  • Were they notified of that reason?
  • Was the person given an opportunity to respond to the reason?
  • Was a support person refused?
  • Had they been warned about unsatisfactory performance?

Wouldn’t you provide any employee, in the minimum employment period or not, small business or not with this process?  That being the case, why do we need a minimum employment period?  Of course, relying on the minimum employment period means that an unfair dismissal claim can’t be sustained by the employee but my point is – wouldn’t it be better to ensure that sound recruitment and performance management processes mean that claims are unlikely in the first place?

At HR Business Direction we can assist in minimising your risks for an unfair dismissal in a number of ways.  Contact us here.

Leisa Messer BBus(HRM); GradDipIR; CAHRI; IRSQ
Human Resources Strategist | Managing Director
leisa.messer@hrbd.com.au
07 3890 2251
www.hrbd.com.au

 

PerformanceCounselling