Frequently Asked MTA member questions

Public news

Q: What is the probation period for an employee?

A probation period is a period at the start of employment where the employer is reviewing their new employee. The purpose of the probation period is to determine whether or not the employee is a good fit for the business in terms of work habits, skills and productivity.

Generally, the probation period is contained in the employment contract and is most commonly 3 or 6 months, but may be more or less depending on the business and the type of role the employee is performing.

It is important not to confuse a probation period with the ‘minimum period of employment’ an employee must serve before being entitled to bring an unfair dismissal claim, even though it is common practice to align the probation period with this minimum period of employment.

The minimum period of employment that an employee must serve before being entitled to make an unfair dismissal claim is 6 months if the business has 15 or more employees and 12 months if the business has less than 15 employees.

Q: Can I send an employee home without pay if they misbehave

No, unless an enterprise agreement or Award allows you to do so. While you may stand-down or suspend an employee if they have engaged in misconduct, these periods must be paid. If there is a suspension or stand-down without pay, and this is not permitted by an enterprise agreement or Award, then you may have breached the employment contract and the employee may be able to sue for the lost income.

Before suspending or standing-down any employee, it is important to contact the workplace relations team on 8291 2000 for assistance.

Q: How many warnings do I need to give an employee before I dismiss them?

There is a common myth that you must give an employee three warnings before you can dismiss them. This is not true and the myth is based upon the internal policies of some government departments and large employers.

Depending on the misconduct of the employee you may not need to issue a warning at all and may be able to dismiss them on the spot in what is called ‘summary dismissal’. You may only summarily dismiss an employee where they engage in serious misconduct such as theft, fraud, violence or intoxication in the workplace.

For any other misconduct, the number of warnings required to be provided to an employee will change depending on the situation. For example, lateness to work will require more warnings than a breach of a work health and safety direction.

Q: Can I make an employee redundant?

Organising a valid redundancy is one of the most complicated methods of ending an employment. It is very easy for a business to get the process wrong and be sued.

Redundancy relates to a position or job within a business, not an individual employee. When an employee is made redundant, it is because their job is no longer required within a business for example, if a business decides to outsource its accounts, then it is likely that the businesses’ bookkeeper will be made redundant.

Redundancies become more complicated where there is a downsizing in the business, for example a business determines that it only needs two salespeople instead of three. When this occurs, it is common for a business to choose who they want to make redundant and proceed with the redundancy. However doing this can be very costly to the business.

When more than one person could potentially be made redundant, like in the example of a business downsizing, it is required that the business determines the employee to be made redundant using impartial selection criteria. The impartial selection criteria needs to be fair and cannot be discriminatory. Surprisingly the most common method of ‘last in, first out’ has been deemed to be discriminatory on the basis of age.

In addition to ensuring the selection of an employee for redundancy is fair and impartial, a business must consult with its employees prior to and during the redundancy process.

Before making an employee redundant, it is important to contact the Workplace Relations team on 8291 2000 for assistance or email us by clicking here.