Trial period notice: What's the law?

Published 19 Oct 2017

Most permanent employment contracts in NSW contain some sort of trial or probation period - this is designed to help both employers and employees test out their fit of the job. If either party decides during the probation period that they wish to terminate the employment, the notice period is considerably shorter than after the trial period.

Sometimes, though, there can be disputes over probation period termination, so it's important to know your rights and seek legal help if you feel they've been infringed upon.

Potential probation period disputes

Trial periods are not required by law - some employers choose to forgo probation and move straight into a permanent contract. If an employer does decide to include a trial period in the contract, the length of that period is up to their discretion, but is usually somewhere between three and six months.

Employees on probation are entitled to the same basic rights as non-probationary employees, meaning fair wage, annual leave accruement and safe working conditions, as well as notice of termination. If they wish to dismiss the employee on trial, employers must give the employee a minimum amount of one week's notice, or payment in lieu of notice - otherwise they risk liability for unlawful termination.

As with all dismissals, the reason behind the termination must be legal. For example, employers may not fire an employee based on race, gender, orientation, age or disability. They may also not dismiss someone because that person filed a complaint or made an enquiry. 

What should I do if I feel I've been wrongly terminated?

In some cases, employees may believe that their probation period was terminated unfairly, or that they didn't receive proper notice or payment. If you believe your employer has breached the terms laid out in your employment contract, you may have a case against them - the first step is to contact the Fair Work Commission and file a complaint. If this doesn't amount to anything, it makes sense to reach out to a team of lawyers in Parramatta.

It can be intimidating to imagine taking on a previous employer in a legal battle, but with a qualified and experienced Parramatta commercial lawyer at your side, you'll stand the best chance. If you have reason to believe that your employer violated the employment contract when dismissing you, Malouf Solicitors can help. Reach out to us today for more information.

Please call us on 02 8833 2000 to speak with a lawyer

I would just like to say thank you to Anthony who assisted my son in his matter. He is a first home buyer and was pressured into signing a contract prior to obtaining legal advice. The contract was certainly was not the normal straight forward type. To be able to obtain the help and assistance he did from Anthony and rescind the offer the next day, was wonderful. We were able to have a stress free Christmas. I am unable to thank him enough for this. My son and our family will be contacting Anthony when we find the next property.
Kim of Sydney

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