Reading time: 3 minutes

We often speak with clients about extending the probationary period of their employees. Is this legal, and, if so, under what circumstances? What is probation anyway? If you have an employee who just hasn’t performed in their probation, but you’re not quite sure whether you’ve given them enough time, you may be able to extend the probationary period. For those who do not know what a probationary period is, it is a period during which the employee and employer may assess each other and the role. If either party, for whatever reason, is not satisfied, they may end the employment relationship, provided they do so within the probationary period.

This means that during this initial probationary period, an employer may end the employment of the employee for any reason and not have to worry about having to defend any claims of ‘unfair dismissal’.

Interestingly, the provisions of the Fair Work Act 2009 (Cth) stipulate that employees are not entitled to make unfair dismissal applications if:

  • For business with less than 15 employees – the employee has not worked at least a year at the business; or
  • For business with 15 or more employees – the employee has not worked at least 6 months at the business.

This means that although some employment agreements will stipulate probationary periods of only 3 months, technically speaking, new employees cannot make unfair dismissal claims if they haven’t already been working for 6-12 months, depending on the size of the business.

In these situations, there would not be much sense in extending the probationary period, as the provisions of the Fair Work Act would typically apply.

Can I extend the probationary period even further?

The question becomes: Can an employer set a probationary period that exceeds the time frames established in the provisions of the Fair Work Act? The answer is yes, you can. But it would serve no purpose when the Fair Work Act establishes the minimum required time working before an unfair dismissal claim is made. In other words, because the legislation always overrides employment agreements, an employer would be at risk of an unfair dismissal claim if they terminated someone after that period.


The provisions of the Fair Work Act will trump the terms of any employment agreement. Businesses with fewer than 15 staff have one year to assess the appropriateness of new employees, whereas those with 15 or above have 6 months to make the same assessment. While unfair dismissal claims will not be accepted within this time frame, claims of unlawful termination will. Unlawful termination refers to termination based on a prohibited reason, such as race, gender, pregnancy or religion. These provisions will apply regardless of how long a new employee has been employed.

For assistance with employment law matters, contact LegalVision on 1300 544 755 and speak with one of our employment lawyers today.


Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards