Probationary Employees and Reasons for Dismissal
If an employee is dismissed within their probationary period, do I have to give them a reason?
Short answer = no. Long answer = no, but we generally recommend you do.
Note: Hereafter the term “probationary period” is replaced by “minimum employment period”.
The ‘short answer’ option
An employee dismissed within their minimum employment period does not have to be given reasons for the dismissal because they will not have achieved the required period of service to pursue unfair dismissal, which means they do not have a right of reply to the employer’s decision.
As the employer is not obligated to engage the employee in a warnings process or be drawn into a debate as to the merits of their decision, the employee can simply be given written notice of termination and dismissed with minimal process.
The ‘long answer’ option
Whilst an employee dismissed within their minimum employment period cannot pursue unfair dismissal, every employee can trigger the general protections provisions of the Fair Work Act 2009 (the Act) from day one of employment.
An employee could pursue a general protections dismissal claim if they believe they were terminated for a discriminatory reason (e.g. pregnancy, age, sex, carer’s responsibilities, etc) or for taking personal/carer’s leave; sought to lodge a WorkCover claim; suggested they were being bullied or queried their wage rate or award entitlements, for example. If an employer made the mistake of dismissing an employee for any of these reasons, it would be a breach of the general protections provisions of the Act.
An employer terminating an employee for performance reasons within their minimum employment period will be acting within their rights so when you have bona fide reasons for concluding employment, even if only minor issues, why not identify them? Failing to explain, even broadly, the performance issues that have led to termination within the minimum employment period may encourage an employee to fabricate their own reasoning as to what led to dismissal.
When a general protections dismissal claim is lodged by an employee, the onus is on the employer to PROVE that the employee was not terminated for the reasons they allege.
Identifying the performance reasons that led to dismissal within the minimum employment period at the time the employee is terminated – and including a summary of those issues in the termination letter – may not prevent a general protections dismissal claim being filed by an antagonistic ex-employee, but it will provide the employer with an evidence base to draw from in the hope of successfully defending against a fabricated or inaccurate claim.
Concluding thought – if you feel you can’t identify to an employee why they’re being terminated, maybe there isn’t a valid (i.e. lawful) reason for the dismissal.
Information provided by Employer Services Pty Ltd.
To find out more about how Employer Services can assist your business contact them on (07) 3220 3500
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