What is a Probationary Period?
Many employers think about probationary periods as a kind of “trial run”, to give them a relatively low risk way to assess a new employee’s skills, performance, and cultural fit. But probationary periods in Australia actually aren’t defined in the Fair Work Act. The term doesn’t even appear in the legislation!
Instead, they are a purely contractual arrangement, meaning their length and rules come from the employee’s written employment contract.
Can You Extend a Probationary Period in Australia?
The short answer: yes, but only in certain circumstances. You can extend a probationary period if:
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The contract allows for an extension –if the contract includes a clause that enables the employer to extend the period, the employee has automatically agreed to it.
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The employee consents in writing – If it’s not in the contract, you’ll need the employee’s agreement to extend the probationary period. This can require careful management.
Without one of these, you can’t lawfully extend probation.
Probationary Periods and the Fair Work Act
There’s no direct mention of probationary periods in the Fair Work Act. However, they often align with the minimum employment period which an employee must service before they are eligible to lodge an unfair dismissal claim.
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6 months for businesses with 15+ employees
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12 months for small business employers
That’s why 6-month probationary periods are so common – because they coincide with the unfair dismissal protection threshold for larger employers. Ie, if you terminate employment within that probationary period, the employee can’t bring an unfair dismissal claim.
Note that extending a probationary period doesn’t have any impact on unfair dismissal eligibility. For larger employers with that 6 month minimum employment period, if a probationary period is extended beyond 6 months, that employee has the ability to bring a claim the day after the 6 month period ends. The fact that they’re still on probation isn’t relevant.
Do note, though, that there is no minimum employment period for general protections claims. Where somebody’s employment is terminated for a prohibited or discriminatory reason – for example, because they exercised a workplace right – then the probationary period is irrelevant, and a claim can be brought.
Best Practice for Probation Period Extension
If you’re unsure about an employee’s performance and feel that you or they need more time to be able to make a proper assessment, map out your process early. All workplace processes should involved a clear process:
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Document your concerns clearly and early
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Discuss them with the employee so they’re aware of both your concerns and expectations, and how to meet them
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Extend probation (if the contract allows) and ensure that you’ve set out some clear requirements and metrics that everybody understands
Not only is that the fair, sensitive and sensible thing to do – it will also assist you if you do need to respond to any kind of Fair Work related claim.
When to Seek Legal Advice
An employment lawyer can:
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Confirm if your contract allows an extension
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Help you manage performance discussions sensitively
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Reduce your unfair dismissal risk
The earlier you get legal input, the smoother the process will be, and the better prepared to respond to any claim that might arise.
Need help with probationary period extensions or employee performance issues?
📞 Contact Sinclair + May for fixed-fee, employer-focused advice before you take your next step.
