Probation Terminated Letter
Reviewed on 11/7/12
Who can use this correspondence
This correspondence can be used by all employers.
Commentary
Probationary employment refers to the initial period of an employee’s employment during which his or her performance and suitability for the position are assessed. Employees must be informed prior to employment of this condition of probationary employment.
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An employee’s probationary period should be in their contract of employment or an applicable industrial instrument (eg awards, certified agreements, etc). Employers should be aware that under some industrial instruments, it may not be possible to amend an employee’s probationary period after the period has commenced.
Where the employer determines that the employee’s performance in the role is unacceptable, the employee’s employment can, in most cases (providing the probation period does not exceed any limitations on the period under the relevant legislation), be terminated without the employee having any right to proceed with an action for unfair dismissal.
Under the Fair Work Act 2009 (Cth), a minimum employment period applies automatically without the need for bringing it to the employee’s attention before the commencement of employment. However, the probationary period and minimum employment periods do not prevent other claims for wrongful treatment under the general protections provision of the Fair Work Act 2009 (Cth) (such as discrimination or another, unlawful reason for termination of employment), breach of contract, or breach of competition and consumer legislation.
Accordingly, despite the fact an employee is subject to a probationary period, it is prudent to have a valid reason for termination of employment and follow a fair process in carrying out the termination to minimise these risks.
Once the probationary period lapses, the obligations on the employer when terminating the employee are much more onerous. Therefore, if you are not satisfied with a probationary employee, you should take action before the probationary period expires.
The Probation Terminated Letter assumes the most straight-forward situation, ie the employee being obviously unsuitable. It also assumes that the performance or conduct issues are clearly identified and explained to the employee at a meeting. Where warnings have been given, these should be referred to in the letter of termination.
Further information
Further information on how to use this document can be found at the 'How to use correspondence' link on the Correspondence page of the HR Advance website.
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The commentaries and documents in HR Advance are updated as necessary, to keep them relevant. You should familiarise yourself with the relevant commentary each time you create a document.
This document has been drafted to suit a wide variety of businesses, with a number of options available to enable you to customise the document to better suit your business. Nevertheless, you may need to make other changes to the document so that it suits the specific needs of your business. If you make additional changes, we cannot guarantee that the changes and modifications you make to the document will be legally compliant or enforceable.
This commentary and any additional information provided to assist you in creating this document, does not constitute legal advice.
If you are unsure about any aspect of this document (including the changes or amendments you make to it), you should seek appropriate advice from a lawyer, skilled in these issues. You should consult with your financial advisor in relation to any relevant taxation or financial issues concerning the document you create.
After creating this document, you should read through it carefully to make sure it meets your business needs and is consistent with other industrial instruments, policies and procedures which operate in your workplace. This commentary is not designed to be provided to employees or other workplace participants. |
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