Do we need to provide a notice period, or pay in lieu of notice, when terminating the employment of an employee who is serving a probationary period?
Under the applicable modern award, our employees are required to give 1 month’s notice if they resign. Should we let them go within their 6-month probationary period, are we required to pay them 1 month in lieu of notice?
If you plan to dismiss a probationary employee, you must give the required notice in the required manner, as well as comply with general protections provisions, discrimination laws, any contract in place, and workers’ compensation legislation.
If probationary employment is regulated in an industrial instrument, you will need to abide by the notice period the instrument stipulates. As such, in accordance with the applicable award, should you let a probationary employee go, you will be required to pay them 1 month in lieu of notice. Notice must be in writing and state when the employment termination will take place, which cannot be before the notice is given.
Even though an employee is on probation, you should still be able to identify the reason for dismissal, substantiate that the reason for dismissal is lawful and prove the reason for the employee’s dismissal. The Fair Work Act 2009 (Cth) unfair dismissal laws will not apply if you dismiss a probationary employee who has not completed a minimum employment period of at least 6 months.
Ultimately the answer is yes, unless there is serious misconduct or you have employed them for a specified probationary period (i.e. you have agreed that no notice period will apply during that probationary period) and the period has come to an end.