Probation allows the employer and employee to assess how well a new employee is a fit for the role and organisation they have been appointed to.
Any probation period applied to a new employee should be communicated in their appointment documentation prior to their commencement.
For most permanent public service officer roles a 3 month probation period will apply. A longer probation period can be considered, provided:
- it is agreed in writing prior to appointment
- it is reasonable having regard to the nature and circumstances of the employment or
- it is contained within an employment Award.
Setting expected performance and behaviour objectives and establishing tasks and duties to be undertaken should occur from the employee’s first day of duty. This discussion should be documented in the form of a performance agreement and have a focus on ensuring the employee knows what is required of them.
The directive relating to positive performance management requires that where an employee is subject to a probationary period under section 126 of the PS Act, during the probation process, the chief executive must ensure the employee receives:
- a clear statement of the work performance expectations for the probationary period, and
- prompt and appropriate feedback on work performance, including recognition of acceptable and exceptional work performance, and feedback on areas of work performance that need improvement.
This feedback should be documented and provided to the employee throughout their probation period and beyond with a copy of what was discussed provided to the employee via an email or file note. This allows the employee an opportunity to self-correct at the earliest opportunity.
The directive relating to positive performance management requires that a structured review occur where unacceptable work performance issues persist that may result in termination of employment prior to the end of the probationary period if the issues are not resolved.
If an employee on probation is not achieving set performance objectives or behaviour standards, the manager should consider the directive relating to positive performance management and seek advice from their local HR team as soon as possible rather than wait until the end of the probationary period.
The directive relating to positive performance management requires a structured review before the end of the probationary period to:
- confirm the appointment, or
- extend the probationary period for a further period, or
- terminate the employment.
If it is determined that the employee has satisfied the performance and behaviour objectives of their role and met the required standards, their employment should be confirmed and their performance and development supported in line with agency policies moving forward.
Extensions to probation should generally only occur where there has not been a reasonable opportunity to assess the employee’s performance, or the employee has demonstrated good progression towards the required standards and it is anticipated this will be achieved within a short period.
Any extension to a probation period must be for a reasonable period having regard to the nature of the role and circumstances of employment and should be clearly communicated to the employee prior to the cessation of their initial probation.
Termination during probation is an option for a delegate to consider where an employee has been assessed as not meeting the required performance or conduct standards of their role. Decisions about termination during probation must be made in accordance with agency policies.
Decisions about whether or not the employee has satisfied the conduct or performance requirements of their role should not be left until the last few weeks of the probation period. Rather, these decisions should be formed following active monitoring, feedback and management of the employee’s conduct and performance from their commencement.
Notifying the employee of the proposed action to terminate employment does not require a formal ‘show cause’ or disciplinary process to occur. Natural justice is provided to the employee within their probation period through the provision of regular documented feedback and the opportunity to respond to this at the time it is given. Written notice of this decision must be provided to the employee before the nominated end date of their probation period.
Section 315 of the Industrial Relations Act 2016 outlines that an employee cannot make an unfair dismissal claim if their employment is terminated during their probationary period.
However, this provision does not prevent an employee from lodging an adverse action or discrimination claim against an employer for dismissal during probation, as referenced in section 282 of the Industrial Relations Act 2016. Similarly, it does not prevent an employee lodging a discrimination claim as referenced in section 15 of the Anti-Discrimination Act 1991.
Clear documentation of the feedback discussions held with the employee about identified performance issues, the supports implemented and the opportunity they were given to self-correct will help an agency demonstrate there was reasonable cause for termination should their decision making be challenged through either of these mechanisms.
|Type of appointment||Does probation apply?|
|Permanent appointment as a public service officer||
|Permanent appointment as a public service employee||
|Temporary fixed term employment/ employee||
|Promotion of a public service officer||
|Transfer between public service departments for permanently appointed officers or employees||
|Appointment from a casual or temporary fixed term position to a permanent role (i.e. casual or temporary fixed term conversion)||
|Re-engagement of a public service officer or employee following a break in service||
|Appointment to a Senior Executive or Chief Executive position||
* The Chief Executive may apply discretion to waive the probation period and this is generally recommended for casual and temporary fixed term conversions. If probation is applied, the chief executive should consider the unfair dismissal provisions an employee will likely have access to under the Industrial Relations Act 2016.