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Probation: when to extend, when to end

A decision flow for the last week of a probation period. Get the timing wrong and a clean exit becomes an unfair dismissal claim.

The probation period is the most-used and least-understood part of the employment relationship. The legal protection is the minimum employment period under the Fair Work Act, not the probation clause in the contract. Knowing the difference, and the timing, is what makes a probation exit defensible.

Has the minimum employment period been met?

The minimum employment period under the Fair Work Act depends on business size. Whether the probation clause in the contract aligns with it is a separate question entirely, and worth checking against headcount before the conversation.

Where it goes wrong: relying on the contract's 'probation' as the trigger for action when the statutory minimum employment period tells a different story. The employee may have unfair dismissal access the employer assumed they did not.

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Has the employee been given the role description, the standards, and time to meet them?

What the employee needs to have been told, and how often, depends on the role's complexity, the standard of performance expected, and the employer's policies on probation reviews.

Where it goes wrong: no documented standard of performance, then a sudden exit conversation late in the period. Whatever the substantive merits, the procedural picture rarely supports the employer.

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Have you had structured check-ins during probation?

Cadence and depth of check-ins depend on the role and the employee. Frequent, informal, documented check-ins are usually more useful than a single formal review.

Where it goes wrong: silence during the period, then an unexpected conversation. The employee credibly says they were never told there was a concern.

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Is the decision to end or extend supported by the evidence?

Whether to extend or end depends on the nature of the gap, the trajectory, and whether the conditions for success have actually been put in place. Extending without changing the conditions usually delays the same conversation.

Where it goes wrong: extension as avoidance, ending without process, or making the decision so close to the deadline that the conversation feels reactive rather than considered.

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Have you followed the contract's notice provisions?

Notice obligations during probation depend on the contract and the relevant Award or EA. Some contracts shorten notice during probation; others do not.

Where it goes wrong: applying the wrong notice period, or letting the probation period roll over by accident. Either way, the employer's options narrow significantly.

Three things to watch for

1. Confusing probation with the minimum employment period

The contract's probation clause is internal policy. The minimum employment period under the Fair Work Act is what determines unfair dismissal access. Two different things.

2. No documented expectations

If the employee was never told what good looked like, ending probation on "poor fit" is hard to defend. Document the standard.

3. Late notice

Letting the probation period expire by accident means the employee's status changes to permanent. Make the decision before the deadline.

A decision flow for the last week of a probation period. Get the timing wrong and a clean exit becomes an unfair dismissal claim.

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