Dismissal from employment is never an easy thing to deal with. But it’s not the end of the world! This guide can help you fight dismissal during your probation period so you can get back to work and on with your career.
A probationary employee is one who has not yet completed the qualifying service period necessary to attain permanent status in the company in which they are employed. The probation period typically lasts three to six months, and during that time, the company can in general terms fire the employee without reasons. However, employees still have some fundamental rights which we answer below.
Can you claim unfair dismissal during probation?
Whilst there are options, and employees do have rights under General Protections, there are limitations to putting forward an application to the Fair Work Commission for unfair dismissal.
In order to lodge an unfair dismissal application, the Fair Work Commission requires six months of employment in companies with more than 15 employees, or over 12 months in companies with fewer than 15 employees. Therefore, if you are dismissed during this time, it is unlikely that you will meet the eligibility criteria to lodge an unfair dismissal application.
However, this does not mean that you do not have rights. You are still entitled to pursue your rights through the Fair Work System. Even if ineligible for Unfair Dismissal, you may still be able to pursue a General Protections Application in the Fair work Commission.
Can I put forward a General Protections application?
Yes, you can put forward a claim to the Fair Work Commission under the General Protections provision. However, your claims to to align with the application requirements,
A General Protections application is ultimately a discrimination complaint that an employee may make in the Fair Work Commission. However, in order to make a General Protections application, you must establish that you were subjected to adverse action due to either discrimination, the exercise of a workplace right, or industrial action.
Adverse Action & Discrimination
Adverse action is negative conduct towards an employee, which has occurred directly as a result of discrimination, the exercise of a workplace right, or industrial action. Adverse action may include dismissal, altering your employment, treating you less favourably than your colleagues, or injuring you in your employment.
In Australia, the Fair Work Act 2009 (Cth) protects 13 specific attributes from discrimination. These include:
- Race
- Colour
- Sex
- Sexual orientation
- Age
- Physical or mental disability
- Marital status
- Family or carer’s responsibilities
- Pregnancy
- Religion
- Political opinion
- National extraction
- Social origin
If you are treated differently or worse than your colleagues for one of these reasons, you may have been discriminated against. For example, if you did not pass your probationary period because you have a disability, that’s called adverse action. Any instances of negative treatment due to the attribute, including the dismissal itself, can be considered adverse action, in respect of which you may be eligible to make a General Protections Application.
Workplace Rights
An exercise of a workplace right typically is where you have made complaints or enquiries about your term of employment. For this reason, it includes receiving a benefit or having a role or responsibility under a workplace law, or in instances where you have commenced legal proceedings for a work matter.
If you’ve ever asked questions about your role, asked for clarification on your duties, or simply tried to defend yourself against negative treatment, then you may be eligible to make a General Protections Application. Our team of Workplace Advisors will be able to best support you through this process.
Industrial Action & Union Membership
Protections for industrial activity include where you engaged in, proposed to engage in, or refused to participate in industrial activity. Industrial action typically involves being a part (or not being a part of) unions. You should feel supported in being a union member or not.
Discrimination on the basis of your membership status with a union or industrual activity can be direct or indirect.
Direct
If someone has been treated less favourably because of trade union activity than someone without that activity, this is known as direct discrimination.
Indirect
Indirect discrimination is when there’s a condition you must comply with that others might not. This means it can cause difficulties for people who have a particular trait. For example, if your employer continues to request a meeting with you (knowing you’re a union member) at the same time union meeting are held, then this could constitute indirect discrimination, all be it a more subtle form than direct discrimination.
Notice and leave entitlements during probation
It’s important to be aware that being dismissed or fired during the probationary period does not stop you from being able to collect your unused annual leave hours. You’re employer has an obligation to provide you with adequate notice and pay out any unused accumulated annual leave hours. In almost all awards and agreements your employer does not have to pay any accrued sick leave on termination of employment by either party.
Important Requirement
Even during a probation period (3-6 months), and whether it is an unfair dismissal or a general protections claim there is very strict 21 days to lodge a application. It’s not 21 days from when you get your final payout, or your dismissal letter, it is from when you’ve been informed you have been dismissed from your employment.
We Will Support You
Here at Australian Workplace Discrimination Representatives, we can support you with any questions you have. We are superheroes when it comes to not only understand the circumstances, but also assisting you in deciding the right avenue to take when it comes to dismissal during probation. If you decide to lodge an application with the Fair Work Commission, our team of Workplace Advisors will work through drafting this together as your representative.
We’d love to hear from you. Contact our team today on 1800 333 666 for a confidential and free initial consultation.
