Probationary Period Dismissal

Employers and employees often use “trial” and “probation” as though they mean the same thing. Legally they do not. A probationary period can be used to assess suitability in a new job, but the employer must ordinarily still have a proper reason and follow a fair process if dismissal is proposed.

What a probationary period can do

A probationary period can set an agreed period for assessing whether an employee is suitable for a new job. It can be longer than 90 days if the duration is reasonable in the circumstances. It can also be used where the employee has worked for the employer before, including where an existing employee starts a new job.

The probationary arrangement should be agreed at the start of the new job and recorded in the employment agreement. It cannot simply be invented after difficulties arise.

What should happen if performance is not good enough?

If an employer wants to dismiss an employee during or at the end of probation, the employee should ordinarily know what is wrong before the dismissal decision is made. Depending on the role and facts, a fair process can involve:

• Following any probation process promised in the employment agreement.
• Assessing the employee fairly against the actual requirements of the job.
• Explaining the concerns with specific examples.
• Providing appropriate advice, training, guidance or support.
• Making clear that employment may be at risk.
• Giving the employee a reasonable opportunity to respond and improve.
• Genuinely considering the employee's explanation and progress.
• Giving the required notice if dismissal is ultimately decided.

Common probation problems

• No concerns are raised until the last day of probation.
• The employee is compared against standards that were never communicated.
• The employer gives no meaningful opportunity to improve.
• Training or support promised at recruitment never occurs.
• The employer relies on personality or “fit” without explaining the actual concern.
• The probation end date passes and the employer later tries to treat the employee as still on probation.
• The employer calls the arrangement a “90 day trial” even though only a probation clause exists.

Probation and poor performance

Probation often overlaps with performance management. The employer does not necessarily need to run a lengthy formal PIP in every probation case, but the employee should ordinarily have enough clarity, warning and opportunity to demonstrate suitability before the employer concludes they cannot do the job.

If the employer's real concern is misconduct rather than capability, that should be dealt with as a disciplinary issue rather than disguising it as a vague probation failure.

What if the employer simply says “not a good fit”?

The phrase may describe a genuine suitability concern, or it may hide something else. We look at what the employer actually observed, what standards applied, what concerns were raised, whether you were given a fair opportunity to respond, and whether there is evidence suggesting another reason for the dismissal.

90 Day Trial Period Performance Meeting Unfair Dismissal

Frequently asked questions

Can probation last longer than 90 days?

Yes. A probationary period can be for a reasonable agreed duration. The 90-day maximum applies to statutory trial periods, not probationary periods.

Can probation be used for an existing employee moving roles?

It can be used when an employee starts a new job, even with the same employer, if properly agreed. That is another important difference from a statutory trial period.

Can an employer dismiss me with no warning because probation is ending?

Ordinarily the employer should have assessed you fairly, told you why suitability or performance is inadequate, warned that employment may end, and given an opportunity to respond and improve.

General information only — the employment agreement and the actual probation process need to be reviewed together.