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They said I am on probation. Do I have rights?

25 quoted answers, each with its source

The short answer

To be eligible to apply for unfair dismissal, an employee must have worked for the employer for at least 6 months, or 12 months if the employer is a small business, meaning a business with fewer than 15 employees counted at the earliest of when the employee is told their employment has been terminated or given notice of termination. The period of employment is the employee's continuous service with that employer, but casual service counts only if the employee was a regular casual with a reasonable expectation of continuing employment on a regular and systematic basis. After a change of business ownership, service with the first employer may count with the second employer, unless the old and new employers are not associated entities and the new employer informed the employee in writing before the new employment started that the old service would not be recognised. Employees on probation continue to receive the same entitlements as employees not on probation, and an employee who does not pass probation is still entitled to notice when employment ends; the employer usually decides the probation length, which often ranges from 3 to 6 months from the start of employment.

Every part of this comes from the quotes below. How we write these.

What the rules actually say18

Quoted straight from the Fair Work Ombudsman, the Fair Work Act 2009 or the applicable modern award.

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The Fair Work Ombudsman states that the minimum employment period for an employee to be eligible to apply for unfair dismissal is at least…

  • 6 months.
  • 12 months if the employee worked for a small business.
first-party
1 quote from 1 source
have worked for that employer for at least 6 months, or 12 months if you worked for a small business
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  • The minimum employment period is 12 months if the employer is a small business.
  • The law protects employees who work for at least the minimum employment period before dismissal.
first-party
1 quote from 1 source
work for at least the minimum employment period before the dismissal (6 months, or 12 months if the employer is a small business) AND
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The Fair Work Ombudsman defines a small business, for unfair dismissal purposes, as any business with fewer than 15 employees.

first-party
1 quote from 1 source
A small business is defined as any business with fewer than 15 employees.
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The Fair Work Ombudsman states that where there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.

first-party
1 quote from 1 source
If there was a change of business ownership, service with the first employer may count as service with the second employer when calculating the minimum employment period.
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The Fair Work Ombudsman cites Fair Work Act 2009 sections 23, 382-388 and 394 as the source reference for its unfair dismissal page.

first-party
1 quote from 1 source
Source reference for page: Fair Work Act 2009 sections 23, 382–388, 394
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The length of a probation period…

  • is usually decided by the employer.
  • often ranges from 3 to 6 months.
  • begins from when the employee starts employment.
first-party
1 quote from 1 source
An employer usually decides on the length of the probation period. It often ranges from 3 to 6 months, beginning from when the employee starts employment.
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The Fair Work Ombudsman states that while on probation, employees continue to receive the same entitlements as someone who isn't in a probation period.

first-party
1 quote from 1 source
While on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period.
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The Fair Work Ombudsman states that an employee who doesn't pass their probation is still entitled to receive notice when employment ends.

first-party
2 quotes from 1 source
If an employee doesn’t pass their probation, they are still entitled to:
receive notice when employment ends
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The Fair Work Ombudsman states that when counting employees to determine whether a business is a small business at the time of dismissal, regular and systematic casual employees employed by the business are counted.

first-party
2 quotes from 1 source
To figure out whether a business is a small business, count all employees employed at the time of the dismissal including:
regular and systematic casual employees employed by the business at the time of the dismissal
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The Fair Work Ombudsman states that the size of the business is counted at the earliest of when the employee is told their employment has been terminated, or when the employee is given their notice of termination.

medium confidencefirst-party
3 quotes from 1 source
The size of the business is counted the earliest of:
when the employee is told their employment has been terminated, or
when the employee is given their notice of termination
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Fair Work Act 2009 section 384(1) defines an employee's period of employment as the period of continuous service the employee has completed with the employer as an employee.

first-party
2 quotes from 1 source
An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
384 Period of employment (1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
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Fair Work Act 2009 section 384(2)(a) provides that service as a casual employee does not count towards the period of employment unless the employment was as a regular casual employee and the employee had a reasonable expectation of continuing employment on a regular and systematic basis.

first-party
5 quotes from 1 source
a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was as a regular casual employee; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
384 Period of employment (1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee. (2) However: (a) a period of service as a casual employee does not count towards the
(2) However: (a) a period of service as a casual employee does not count towards the employee’s period of employment unless: (i) the employment as a casual employee was as a regular casual employee; and (ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and (b) if: (i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and (ii) the o
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Fair Work Act 2009 section 384(2)(b) provides that service with an old employer does not count towards the period of employment with a new employer where the employers are not associated entities and the new employer informed the employee in writing before the new employment started that service would not be recognised.

first-party
6 quotes from 1 source
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
384 Period of employment (1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee. (2) However: (a) a period of service as a casual employee does not count towards the
to a new employer; and (ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and (iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised; the period of service with the old employer does not count towards the employee’s period of employment with the new employer.
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The Fair Work Commission's Unfair dismissals benchbook cites Fair Work Act 2009 s.384(2) as the source for whether periods of service as a casual employee count towards the minimum employment period.

first-party
2 quotes from 1 source
See Fair Work Act 2009 s.384(2)
Periods of service as a casual employee do not count towards the minimum employment period unless both of the following conditions are satisfied:

Measured finding3

Something someone actually measured, with the method attached.

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In Harrison v Imperial Management Queensland Pty Ltd T/A Pacific Red Produce [2011] FWA 8099, it was found that the…

  • frequency of the applicant employee's engagement was erratic.
  • ultimate engagement was 7 months after the penultimate engagement.
  • applicant could not have had a reasonable expectation of continuing employment.
first-party
2 quotes from 1 source
Harrison v Imperial Management Queensland Pty Ltd T/A Pacific Red Produce [2011] FWA 8099 (Richards SDP, 30 November 2011)
Because the frequency of engagement of the applicant employee was erratic, with the ultimate engagement being 7 months after the penultimate engagement, the applicant could not have had a reasonable expectation of continuing employment.

Practical effect1

What is observed to happen in practice, as distinct from what is documented.

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In Taulapapa v Toll Personnel Pty Limited [2018] FWC 6242 the Fair Work Commission found that the minimum employment period was satisfied because there was a connection between the applicant's old employer and his new employer.

first-party
2 quotes from 1 source
Taulapapa v Toll Personnel Pty Limited [2018] FWC 6242 (Cambridge C, 16 October 2018)
The Commission found that the minimum employment period was satisfied for the applicant in this matter because there was a connection between his old employer (Staff Australia) and his new employer (Toll Personnel).

Disputed between sources1

Sources that do not agree, presented without picking a winner.

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The Fair Work Ombudsman states that employees on probation continue to receive the same entitlements as employees not on probation.

low confidencefirst-partyvendor
2 quotes from 2 sources
While on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period.
These might include giving the employee two verbal warnings and a written warning before being able to justly end their employment.

Often said, but we could not find it in the rules2

Lots of people say this. We went looking for an official source that backs it up and could not find one, so treat it as something people repeat rather than something settled.

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Employsure's employment contract guide lists the…

  • commencement date of employment as a term to include in a contract for a permanent employee.
  • probation period as a term to include in a contract for a permanent employee.
medium confidencevendor
1 quote from 1 source
Commencement date of employment and probation period (if a permanent employee)