Can I Put My Employee Back On Probation? - Business 360 Pty Ltd
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Can I Put My Employee Back On Probation?

Can I Put My Employee Back On Probation?

Can I Put My Employee Back On Probation?

Many employers wonder if an employee can be put back on probation when considering appointing an employee to a different position within their business. Often this occurs when considering promotion and there is uncertainty as to whether an employee can step up into a more senior role. Unfortunately for the employer, the answer is no.

A probationary period can only occur at the very start of permanent full time or permanent part-time employment. The purpose of probation is to give the employer time to assess whether a new employee is suitable and capable of performing the role for which they have been employed.

Under the Fair Work Act, there is no provision for probation. Probation is a term that is found only in an employment contract. However, the Fair Work Act does make provision for what is known as the “minimum employment period”. For a small business with fewer than 15 employees, the period lasts for 12 months and for larger businesses, it is a six month period. The minimum employment period is a period during which an employee whose employment is terminated cannot lodge an unfair dismissal claim.

Once the employee has completed the relevant minimum employment period, the employer is no longer protected from the risk of unfair dismissal if employment is terminated. Even if you did promote an employee and put them on probation again, it would have no effect as business protection. If employment was terminated under a second probation period for failing to meet the requirements of the promotional position, you would most certainly be exposed to the risk of an unfair dismissal claim being lodged by the employee. Why? Because their minimum employment period was completed.

As alternative protection, a fixed-term employment contract for a set period could be offered with a guaranteed right of return to the former job role if the new role doesn’t work out. This allows both parties to have confidence that if the new role is not the right fit, the arrangement can end with the employment relationship remaining intact. You could also consider a “higher duties allowance” option to give the employee a feel for a new job role and time for you to observe performance before offering the new role permanently. The employee must be remunerated at the appropriate salary for performing in a higher level job role. Also, some awards provide for payment of a higher duties allowance to relieve in a more highly graded position, so be sure to check any relevant award provisions that apply to your business.

Remember that employees need training, support and time to adjust to a new role – an excellent opportunity for you to improve staff engagement by actively demonstrating that your business provides career development to its employees.

If you would like further information on fixed-term contracts of employment and higher duties allowances, please reach out to us on 1300 287 360 or email info@business360pps.com.au.