How to Safely Fire Staff

Probationary periods are commonly set at six months, aligning with the minimum employment period for unfair dismissal claims under the Fair Work Act. For small businesses, the minimum employment period is 12 months. While there is no legally mandated minimum or maximum probationary period, setting it longer than the minimum employment period may cause confusion down the line.

The purpose of a probationary period is to provide employers with the opportunity to assess an employee’s performance and fit within the company while avoiding the risks associated with unfair dismissal claims.

By setting a probationary period of six months or less, employers can ensure they have sufficient time to evaluate the employee and make a decision before the employee gains access to these legal protections following the minimum employment period. This is why many businesses choose six months as a standard probation period—it balances giving employers adequate time to assess suitability while minimising potential exposure to claims.

Contrary to popular belief, dismissal does not require a "three strikes and you're out" rule unless explicitly outlined in your company policies. Employers can dismiss an employee without prior warnings if the conduct is serious enough to warrant termination (summary dismissal). However, if your policies specify a process, such as giving three warnings, you must follow it. Failure to adhere to your policies can lead to scrutiny from the Fair Work Commission. To avoid complications, review and amend policies to ensure they align with practical and legal expectations.

Misconduct and serious misconduct are distinct under Fair Work regulations. Serious misconduct involves severe breaches such as theft, sexual harassment, or unlawful conduct, allowing for summary dismissal (termination without notice) in certain cases. For further details on serious misconduct, refer to the Fair Work Commission’s definition here. Inappropriate workplace behaviour that breaches your Code of Conduct or Appropriate Workplace Behaviour Policies may still be classified as misconduct but might not meet the threshold for serious misconduct. Misconduct can warrant action but typically requires adherence to standard notice and procedural obligations.

This distinction is crucial for handling incidents appropriately and communicating the severity to employees.

Unfair dismissal claims often consider whether an employer has effectively implemented workplace policies. The Fair Work Commission will examine if policies were consistently applied across the organisation, supported by proper documentation, and whether employees were given adequate training and opportunities to understand them.

This is particularly significant for long-term employees. For instance, if an employee with several years of service was only introduced to workplace policies on their first day and never revisited them, this could lead to the dismissal being deemed harsh or unjust. A lack of ongoing training and reinforcement weakens an employer’s ability to demonstrate that expectations were clearly communicated.

To mitigate this risk, employers should routinely review and update policies, ensuring they are clearly conveyed to staff. Conducting annual training sessions or reminders is a practical approach to reinforcing workplace expectations. With digital tools like Tanda, staff can sign off and acknowledge the receipt of policies beyond their initial onboarding. Always record meeting dates and outcomes to refer back to.

Dismissing an employee solely for “not being a cultural fit” is risky, as it’s subjective and may expose you to discrimination claims, or unfair dismissal claims if the employee is outside the minimum employment period of six months (12 for small businesses). Remember, a dismissal will be unfair if there is no valid reason for the dismissal relating to the employee’s conduct or capacity. 

To reduce risk of unfair dismissal or discrimination claims, you should provide objective, substantiated reasons tied to the employee’s conduct, or capacity. For example, identify specific unmet KPIs, breaches of workplace policies or codes of conduct, or an inability to perform inherent role requirements. Clearly outline these in the termination letter or notices to improve defensibility and show the decision is unrelated to protected attributes.

Addressing absenteeism due to illness requires a careful approach. Under the National Employment Standards (NES), employees may take unpaid personal leave as necessary. However, if their total unpaid leave reaches three months within 12 months (continuous or otherwise), termination may be considered due to incapacity, provided you follow a fair process.

Frequent absences should be managed by discussing the impact on the employee’s role and performance. Meet with them to explore return-to-work plans, training needs, and reasonable accommodations that can be made without causing undue hardship. Document these efforts, as supporting the employee’s return demonstrates good faith and may protect against unfair dismissal claims should termination occur.

When discussing absenteeism, focus on the business impact and link concerns to performance or capacity issues. Refer to workplace policies, issue clear warnings if appropriate, and provide opportunities for improvement. Always maintain records of conversations, accommodations, and decisions.

If dismissal becomes necessary, base the decision on incapacity or performance, ensuring it is not linked to unlawful discrimination.

When a candidate fails pre-employment checks, employers must carefully assess whether rejecting their application is lawful and justified.

For police checks, any decision to reject a candidate based on criminal history must demonstrate that the offences are relevant to the role. For example, a fraud offence may reasonably disqualify someone from a banking position. Employers should consider the nature of the offence, its relevance to the role, and the time since the offence occurred. Some exceptions may apply to particular employment, like working with children.

For medical checks, employers should focus on whether the candidate can fulfil the inherent requirements of the role. Engaging a medical professional to conduct pre-employment assessments demonstrates a fair process. If mental health assessments like K10 or DASS21 are used, ensure decisions are based on clear evidence of how the condition impacts the role and that reasonable adjustments have been considered.

When an employee's pre-existing medical condition impacts their attendance or safety, employers must balance their duty of care with workplace safety obligations.

If safety is a concern, remember that employees must meet the inherent requirements of the role, including performing duties safely. You may request the employee attend a medical examination (at your expense) or provide evidence of their fitness to work if there are legitimate concerns about their capacity. This is especially reasonable in high-risk industries or where their condition may endanger others. Provide the medical professional with a detailed job description and key role expectations to ensure an informed assessment.

For attendance issues, discuss the impact of absences with the employee and explore reasonable adjustments to support their ability to fulfil the role. Document all discussions, risk assessments, and accommodations offered. If the employee cannot meet the inherent requirements even after reasonable adjustments, you might consider termination. Ensure all actions comply with workplace safety, anti-discrimination, and Fair Work laws.

When dismissing an employee for poor performance, ensure it's for a valid reason, considering the impact on the workplace and the employee. Start by warning the employee and offering opportunities for improvement. Take into account factors like their age, length of service, and employment history. If there are periods of good performance, approach the dismissal carefully, as it may indicate potential for improvement with support.

Gather evidence of the poor performance, such as unsatisfactory work, warning letters, and feedback from managers or colleagues. Communicate the performance issue to the employee, providing a fair chance to respond and a support person if they request one. Document every step of the process, including memos, file notes, and performance reviews, to ensure you have a solid record should legal action arise.

In cases of intermittent good performance, assess the overall pattern to determine if the performance issues are part of a continuous problem. Document all instances of poor and good performance, and if needed, offer additional support such as training or role adjustments to maintain consistency. 

Probationary periods are conducted based on your businesses' own policies, and therefore there are no specifications in the modern awards or the National Employment Standards (NES) as to the length of a probation period.

However, you must take into account your modern award/s and the NES when navigating an employee's minimum employment length. Amongst other things, this minimum employment length determines when an employee is eligible to claim unfair dismissal.

For non-small businesses, the minimum employment length is six months of continuous service.

Whether leave contributes to the length of an employee's minimum employment length depends on the type of leave, including whether it is paid or unpaid. Under Section 22 of the Fair Work Act 2009 (Cth), the following excluded periods do not count as service towards the minimum employment length:

• any period of unauthorised absence;
• any period of unpaid leave or unpaid authorised absence (with some exclusions like community service leave)
• any other period of a kind prescribed by the regulations

Therefore, the time spent on excluded periods does not contribute to fulfilling the required minimum employment period. However it's Important to note that these periods do not break the continuity of service, meaning that the employee’s employment is considered continuous, even though the time away does not count towards the minimum service requirement.