A probationary period gives you and a new employee time to confirm the role is the right fit. Used well, it sets clear expectations, surfaces performance issues early and protects your business; used carelessly, it can create false confidence about your rights, particularly around unfair dismissal.
A probationary period is a defined window at the start of employment — agreed in the employment contract — during which you assess whether a new hire can perform the role and fit your team. It’s a contractual arrangement, not a separate legal status under the Fair Work Act. That distinction matters: probation does not switch off an employee’s workplace rights, and it is not the same thing as the minimum employment period (more on that below).
During probation, the employee is a full member of your team. They accrue leave, must be paid correctly under the relevant award or agreement, and are protected by the same general protections and anti-discrimination laws as everyone else.
There is no fixed legal length for a probationary period — common lengths are three or six months, set by agreement in the contract. Many employers align probation with the minimum employment period so the two run together.
The minimum employment period is the separate Fair Work concept that determines when an employee can access the unfair dismissal jurisdiction. According to the Fair Work Ombudsman (fairwork.gov.au, current as at 2026):
The key point: a contractual “three-month probation” does not shorten the minimum employment period. If you set probation at three months but you’re not a small business, an employee dismissed at month four to five has still served less than six months and generally can’t bring an unfair dismissal claim. Conversely, extending probation to nine or twelve months does not extend the minimum employment period — once an employee passes six months (or twelve for a small business), they can generally access unfair dismissal protection regardless of what the contract calls “probation”.
Because the small business threshold turns on headcount at the time of dismissal, check your numbers before you act — a business hovering around 15 staff can move between the 12-month and 6-month rule.
During a probationary period you can:
You cannot use probation to sidestep an employee’s core legal protections. Regardless of probation, you can’t:
In short: probation gives you assessment time, not a rights-free zone.
If you decide to end employment during probation, follow a clear, documented process:
Under the NES (Fair Work Ombudsman, fairwork.gov.au, current as at 2026), minimum notice based on continuous service is:
Add one extra week if the employee is aged 45 or over with at least two years of continuous service. Awards, agreements or the contract may require more than the NES minimum, but never less. Note that minimum notice still applies even on probation — the most common error is assuming “no notice on probation”.
If your business is a small business employer, dismissals should also follow the Small Business Fair Dismissal Code. Check the current Code on fairwork.gov.au before acting.
Probation is one of those areas where small process gaps create real risk. Our HR consulting helps Australian small businesses get it right: practical, plain-English advice priced at $195 per hour, plus the option of properly drafted contracts, probation review templates and a documented process you can reuse. As a certified Employment Hero implementation partner, we can also set up your onboarding, contracts and review reminders in one system so nothing slips through.
If you’re hiring, restructuring or unsure where you stand, book a free discovery call and we’ll talk through your situation.
There’s no fixed legal maximum — three or six months are common, set by agreement in the contract. Length doesn’t change the minimum employment period that governs unfair dismissal access, so the two are best understood separately.
No. Minimum notice under the NES (or your award, agreement or contract) still applies during probation. The “no notice on probation” assumption is one of the most common and costly mistakes.
Probation is a contractual assessment window you set. The minimum employment period is the Fair Work rule — six months, or twelve months for a small business under 15 staff — that determines when an employee can claim unfair dismissal (Fair Work Ombudsman, 2026).
Generally not until they’ve served the minimum employment period (six months, or twelve months for a small business). However, general protections and anti-discrimination claims can apply from day one, regardless of probation.
You can extend it if the contract allows and both parties agree, but extending probation does not extend the minimum employment period. Once that period is reached, unfair dismissal protection generally applies whatever the contract calls “probation”.
Need help getting probation right? Employment Star’s HR specialists can guide you through contracts, process and fair dismissals — book a free discovery call.
