Can an employee on probation claim unfair dismissal in Australia?

Not while they are inside the minimum employment period: six months, or twelve months if the employer has fewer than 15 employees. The probation clause itself is irrelevant to this; the Fair Work Act counts service, not the contract. Once the minimum period has passed, an employee can claim unfair dismissal even if the contract says probation is still running. Inside the period, general protections, discrimination and breach-of-contract claims remain available.

Firing During Probation in Australia (2026)

Q: Can I fire someone during probation in Australia?

Yes — but with important limits. Employees in their minimum employment period (typically the first 6 months, or 12 months for small businesses) do not have access to unfair dismissal protections. However, they can still make general protections claims if terminated for unlawful reasons. And probation must be in writing to be enforceable — a verbal probation period offers no protection.

Q: What is the minimum employment period in Australia?

The minimum employment period under the Fair Work Act 2009 (Cth) is 6 months for businesses with 15 or more employees, and 12 months for small businesses with fewer than 15 employees. During this period, employees do not have access to unfair dismissal protections — but they can still bring general protections claims for adverse action.

Q: Does probation need to be in writing in Australia?

Yes — to be enforceable. A verbal probation period is effectively unenforceable. If the employment contract does not include a probation clause, the minimum employment period still applies under the Fair Work Act 2009 (Cth), but you cannot rely on a stated probation period for management purposes. Always include probation terms in writing before the employee starts.

Q: Can an employee on probation make a Fair Work claim?

Yes — a general protections (adverse action) claim can be made from day one of employment, regardless of probation status or the minimum employment period. If an employee believes they were dismissed because they exercised a workplace right, made a complaint, or were discriminated against, they can bring a general protections claim even during probation. General protections claims have no minimum employment period.

Q: Does the minimum employment period include the notice period?

No. The period is measured to the earlier of when the employee is told they are dismissed and when the dismissal takes effect. An employer who gives notice on the last day before the six-month mark has dismissed inside the period, even if the employee works out a week of notice afterwards. Leaving the decision until after the anniversary moves the employee into unfair dismissal protection.

Q: What notice do I have to give when dismissing during probation?

At least the National Employment Standards minimum, which is one week for an employee with up to one year of continuous service, or payment in lieu. The contract or award may require more, and a probation clause cannot reduce it below the NES minimum. Serious misconduct is the only basis for dismissal without notice.

Use this guide if…

• You’re about to terminate someone who is still in their probation period
• An employee has recently made a complaint or taken sick leave
• You’re unsure whether your probation clause is legally enforceable

Yes — you can terminate during probation in Australia, but there are critical limits. Employees in their minimum employment period (6 months for most businesses, 12 months for small businesses) cannot bring unfair dismissal claims. But they can bring general protections claims from day one — and those have no minimum employment period. A termination that looks like it’s about performance can become a claim if the employee can show it was actually about exercising a workplace right.

Last reviewed against Fair Work Ombudsman guidance — October 2026

Quick Answer

Unfair dismissal risk during probation: Lower — no access until the minimum employment period ends
General protections risk during probation: Full — applies from day one of employment
Probation must be: In writing, in the employment contract, before the employee starts
Verbal probation: Effectively unenforceable

Probation reduces unfair dismissal risk. It does not eliminate all legal risk.

Probation vs the Minimum Employment Period

These are two different things that are often confused:

The minimum employment period is a legal threshold under the Fair Work Act 2009 (Cth) — 6 months for businesses with 15 or more employees, 12 months for small businesses. During this period, employees cannot access unfair dismissal protections.

Probation is a contractual term in the employment agreement. A 3-month probation period does not reduce the minimum employment period — the employee still cannot bring an unfair dismissal claim until the 6-month mark regardless of what the probation clause says.

What probation does give you: a contractual basis for increased supervision, performance expectations, and more straightforward termination conversations during the early months — as long as the reason for termination is not unlawful.

What You Can and Cannot Do During Probation

The decision tree below covers the two most common situations an employer faces during a probation termination:

Step 1 — Have they been employed for 6+ months?

No — Under 6 Months

No unfair dismissal access yet. Lower risk — but general protections still apply from day one.

Yes — 6+ Months

Unfair dismissal protections apply. Must follow full fair process regardless of probation clause.

Step 2 — Have they recently made a complaint or exercised a workplace right?

Lower risk. Ensure the reason is documented and not discriminatory.

Yes — HIGH RISK

General protections claim likely. The timing creates an inference of adverse action — regardless of probation status.

The general protections trap: A venue terminates a new employee two months into probation for "not being the right fit." The employee had raised a complaint about unpaid penalty rates the previous week. The Fair Work Commission finds the timing raises an inference of adverse action. The venue bears the burden of proving the termination was not connected to the complaint. General protections claims have no minimum employment period — they can be lodged from day one.

⚡ Not sure if your probation clause holds up — or whether this termination is safe to proceed?

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Unfair Dismissal During the Probation Period: What Actually Applies

“Unfair dismissal during probation” is the question owners search for most, and the answer depends on one thing only: how long the person has worked for you. The probation clause does not change it.

Situation	Unfair dismissal claim?	What still applies
Dismissed inside the minimum employment period (under 6 months, or under 12 months at a business with fewer than 15 employees)	No	General protections (adverse action) from day one; anti-discrimination law; unlawful termination; notice under the NES and the contract; final pay and accrued leave
Probation clause still running but the minimum employment period has passed (for example a 12-month probation at a 20-person business, dismissal in month 8)	Yes	Everything above, plus the full unfair dismissal process: valid reason, warnings for performance, opportunity to respond, support person
Casual dismissed after the minimum period	Yes, if the work was regular and systematic with a reasonable expectation of continuing	Same as a permanent employee; stopping the roster is treated as a dismissal
Employee earning over $190,100 and not covered by an award or agreement	No, at any length of service	General protections, contract claims

Two details catch employers out. First, the period is measured to the earlier of the day you tell the employee they are dismissed and the day the dismissal takes effect. A decision communicated on day 180 is inside the period even if the notice runs past six months; a decision left until day 190 is not. Second, the probation clause cannot shorten the period or lengthen your protection. A three-month probation does not give three months of cover, and a twelve-month probation does not give twelve.

Dismissal inside the period still requires notice: at least one week under the National Employment Standards for up to a year of service, or payment in lieu, and more if the contract or award says so. Only serious misconduct justifies dismissal without notice. Final pay, including accrued annual leave, is due within the timeframe your award sets. For what a claim costs once the period has passed, see what an unfair dismissal claim costs.

Why Probation Must Be in Writing

A verbal probation period is effectively unenforceable. Without a written probation clause in the employment contract — signed before the employee starts — you cannot rely on probation for management or termination purposes. The minimum employment period still applies under the Act, but you lose the contractual basis for a defined review period.

A proper probation clause should specify: the duration (typically 3 or 6 months), that performance will be assessed during the period, and that employment may not continue if the required standard is not met. See our guide on employment contracts for restaurant staff.

What to Do When Terminating During Probation

Even though the unfair dismissal risk is lower during the minimum employment period, best practice is still to follow a documented process. For guidance on the full termination process see our guides on warnings before firing, procedural fairness, and warning letters for hospitality staff.

Have a documented reason for the termination
Hold a brief meeting with the employee to advise them of the decision
Confirm the termination in writing
Process outstanding pay including any accrued leave within 7 days
Ensure the reason is not connected to any complaint, workplace right, or protected characteristic

This process takes 15 minutes and eliminates the general protections risk that exists even during probation.

Don’t terminate for a discriminatory or retaliatory reason and assume probation protects you. General protections claims apply from day one. A termination that coincides with a sick day, a workplace complaint, or a pregnancy announcement creates immediate risk regardless of probation status.

Don’t rely on a verbal probation period. If it’s not in the signed employment contract before the employee starts, you cannot enforce it. See our guide on compliant employment contracts for hospitality.

Don’t assume a 3-month probation means 3 months of protection. The minimum employment period is 6 months (or 12 months for small businesses) regardless of what your probation clause says. A 3-month probation does not create a 3-month unfair dismissal protection period.

Frequently Asked Questions

Can I fire someone during probation in Australia?

Yes — but only for non-unlawful reasons, and only if probation is in writing. Employees in their minimum employment period (6 months for most businesses, 12 months for small businesses) cannot bring unfair dismissal claims. But general protections claims can be made from day one regardless of probation status — so terminations for discriminatory or retaliatory reasons remain fully actionable.

What is the minimum employment period in Australia?

6 months for businesses with 15 or more employees; 12 months for small businesses with fewer than 15. During this period, employees cannot access unfair dismissal protections under the Fair Work Act 2009 (Cth). However, general protections claims for adverse action have no minimum period and can be lodged immediately.

Does probation need to be in writing in Australia?

Yes — to be enforceable, a probation period must be in the signed employment contract before the employee starts. A verbal probation arrangement is effectively unenforceable. Without a written probation clause, the minimum employment period still applies under the Act, but you lose the contractual basis for a defined probationary review period.

Can an employee on probation make a Fair Work claim?

Yes — general protections (adverse action) claims can be made from day one, regardless of probation or the minimum employment period. If an employee believes they were dismissed because they made a complaint, exercised a workplace right, or were discriminated against, they can bring a claim immediately. This is the most significant legal risk during the probationary period.

Can an employee on probation claim unfair dismissal?

Not while they are inside the minimum employment period of six months, or twelve at a business with fewer than 15 employees. The probation clause is irrelevant to this; the Act counts service. Once the period has passed they can claim even if the contract says probation is still running. Inside the period, general protections, discrimination and contract claims remain.

Does the minimum employment period include the notice period?

No. It is measured to the earlier of when the employee is told and when the dismissal takes effect. Notice given on the last day before the six-month mark is inside the period even if the employee works out the notice afterwards.

What notice do I have to give when dismissing during probation?

At least the NES minimum: one week for up to a year of service, or payment in lieu. The contract or award may require more, and a probation clause cannot reduce it. Only serious misconduct justifies dismissal without notice.

What is the difference between probation and the minimum employment period?

The minimum employment period is a legal threshold set by the Fair Work Act 2009 (Cth). Probation is a contractual term. They often overlap but are not the same thing. A 3-month probation does not reduce the minimum employment period to 3 months — the employee still cannot bring an unfair dismissal claim until 6 months (or 12 for small businesses), regardless of what the probation clause says.

Probation reduces unfair dismissal risk. It does not eliminate all legal risk. The general protections provisions apply from the first day of employment — and they are the provisions most commonly triggered by terminations that look routine from the outside.

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