Can we extend probation if a clause in the contract states that we can? If we want to terminate someone’s employment during the extended period, do we need to follow the warning process and offer them a witness at the termination of employment meeting?
You can extend the probationary period in accordance with the contractual provision. However, if the employee’s length of service extends beyond the qualifying period for access to unfair dismissal laws in the Fair Work Act 2009 (Cth) (i.e. 6 months or 12 months if the employer employs fewer than 15 employees), you will need to give the employee an opportunity to improve before dismissing for unsatisfactory performance, and not unreasonably refuse a request for a support person in any discussion about dismissal.