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September 2020

Dismissal during probation period results in unfair dismissal claim

Dismissal during probation period results in unfair dismissal claim

Case

Werner v St Michael’s Association (2020)

St Michael’s Association (Association) employed Ms Werner as a chef and food safety trainer. Ms Werner commenced employment with the Association in March 2018. Her employment was subject to a 6-month probationary period.

During the probationary period, Ms Werner had three performance reviews, during which problems with her performance were discussed. At the end of the initial 6-month probationary period, the Association extended Ms Werner’s probationary period by a further 3 months and placed her on a Performance Improvement Plan (PIP).

At the end of the PIP period, Ms Werner was meeting expectations in 7 of 10 criteria. Thereafter, the Association extended Ms Werner’s probation period for another 2 weeks. At the end of those 2 weeks, it undertook another performance review and terminated Ms Werner’s employment.

Ms Werner lodged unfair dismissal proceedings in the Fair Work Commission (FWC).

Verdict

The FWC found that the Association thought it had an unfettered right to terminate Ms Werner’s employment provided it continued to extend Ms Werner’s probation period. The Association had confused the probation period with the minimum employment period.

The FWC found Ms Werner was meeting expectations in most areas and had made significant improvements. Two of Ms Werner’s managers believed she had made sufficient improvement to continue her employment. Nevertheless Ms Werner’s employment was terminated. As such, the FWC held there was no valid reason for the dismissal. In addition, at no time was Ms Werner given an opportunity to respond or given any warnings that her employment might be terminated.

The FWC awarded Ms Werner $8,788.64 in compensation.

Lessons

An employee is protected from unfair dismissal under the Fair Work Act 2009 (Cth) when they have worked the minimum employment period, irrespective of the probationary period. The minimum employment period is 6 months, or 12 months for small business employers (i.e. employers with fewer than 15 employees).

There are also other legal claims that employees are able to bring regardless of their probationary period, so care needs to be exercised before terminating an employee’s employment.

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