Can an Employee Make an Unfair Dismissal Claim During Probation?

Usually not, as long as your probationary period is shorter than the qualifying period.

Many employers assume that probation automatically prevents unfair dismissal claims, but legally that is not how it works.

The key concept is the minimum employment period, also known as the qualifying period.

Employees can only lodge an unfair dismissal claim if they have worked for you longer than:

• 6 months for most businesses
  
• 12 months for small businesses with fewer than 15 employees
  

If an employee has not yet passed this minimum employment period, they cannot bring an unfair dismissal claim.

This is why many employment contracts include a 3 or 6 month probation period. Probation should not be longer than the qualifying period, otherwise it becomes largely ineffective.

This is also why, if you promote an existing employee, you do not give them a new probationary period. You are generally better off seconding them into the role for a trial period if you are not sure whether the new position is the right fit.

Probation allows both the employer and employee to determine whether the role is a good fit before the qualifying period expires.

However, this does not mean termination during probation is risk-free.

Many employers are surprised by this. They assume that because an employee is “only on probation”, the legal risk is minimal. In reality, many disputes arise because expectations were never clearly documented or concerns were not communicated early.

Why Do Employers Still Need to Worry About General Protections Claims?

Even if an employee cannot make an unfair dismissal claim, they may still lodge a General Protections claim.

General Protections claims fall under the Fair Work Act and deal with what is called adverse action.

An employee may claim that they were treated unfairly because of a prohibited reason.

These protected reasons include things like:

• Being pregnant or breastfeeding
  
• Their race or religion
  
• Having family or caring responsibilities
  
• Having a disability
  
• Making a workplace complaint
  
• Exercising a workplace right, such as taking sick leave
  

If an employee believes they were dismissed because of one of these reasons, they can lodge a General Protections claim.

And importantly:

• There is no minimum employment period
  
• Claims can be made during probation
  
• The burden of proof is reversed
  

That last point is critical.

In a General Protections claim, you must prove that the dismissal was not for a protected reason. So even if you know the dismissal was not because of pregnancy, leave, a complaint, or another protected reason, the employee can still argue that it was, and you need to show why it was not.

This is why documentation and communication during probation are so important.

Why Do Some Employees Use General Protections Claims Instead of Unfair Dismissal?

Sometimes employees know they do not meet the qualifying period for an unfair dismissal claim.

In those situations, a General Protections claim may be the only option available to them.

That does not mean the employee is always right, or always being honest.

But it does mean that even when a termination is genuinely about performance, reliability, or cultural fit, an employee may still allege that the real reason was discriminatory or retaliatory.

If an employer has no documentation of concerns, it can be difficult to demonstrate that the termination was unrelated to a protected reason.

This is why relying solely on the idea that “they’re still on probation” can expose employers to unnecessary risk.

Do You Need to Give a Reason When Terminating Someone During Probation?

Legally, employers often assume they do not have to provide a reason during probation, which was more commonly treated as the standard many years ago.

In practice, it is highly recommended that you do.

Providing a clear and documented reason for termination helps demonstrate that the decision was based on legitimate business concerns, such as:

• Performance issues
  
• Failure to meet expectations
  
• Cultural fit within the team
  

If there is no record of concerns being raised, it becomes much harder to prove that the dismissal was unrelated to a protected attribute or workplace right.

For example, if an employee is dismissed shortly after taking sick leave, requesting flexible work, or disclosing a pregnancy, they may argue that the termination was connected to that event.

Even if that was not the real reason, employers need evidence to demonstrate that the decision was made for valid and documented reasons.

What Should Clinic Owners Do Before Terminating Someone During Probation?

A structured approach during probation dramatically reduces legal risk.

Here are the key steps clinic owners should follow.

1. Make Sure Probation Is Included in the Employment Contract

Your employment contract should clearly state:

• The length of the probation period
  
• The notice period during probation
  
• The employer’s right to terminate employment if expectations are not met
  

Without a properly drafted employment contract, the probation period can become difficult to enforce.

2. Check Whether the Employee Has Passed the Qualifying Period

Before terminating someone, confirm that they have not passed the minimum employment period.

Remember:

• 6 months for most businesses
  
• 12 months for small businesses with fewer than 15 employees
  

Once an employee passes this threshold, unfair dismissal laws apply.

3. Communicate Performance Concerns Early

A probation review should never be the first time an employee hears about concerns.

If someone is not meeting expectations, those issues should be raised early and clearly.

This may happen through:

• Informal conversations
  
• Check-ins during supervision
  
• Feedback after observing performance
  
• Early probation review discussions
  

When concerns are raised early, employees have the opportunity to improve.

And if improvement does not occur, you have evidence that expectations were communicated.

4. Apply Your Approach Consistently

Consistency is critical in employment matters.

Clinic owners should ensure that:

• KPIs and expectations are discussed during onboarding
  
• Practitioners receive regular check-ins about performance
  
• There is a consistent probation review process
  

When employers treat staff consistently, it reduces the likelihood that an employee can argue they were singled out unfairly.

This is one of the reasons I often say it is important not to wait for a formal review to address problems. Just like tracking KPIs in real time gives you a better picture of clinic performance, giving feedback in real time gives you a better foundation for managing probation well.

5. Consider Whether the Termination Could Be Linked to a Protected Reason

Before making a final decision, ask yourself a simple but important question:

Could the employee argue this decision was linked to a protected attribute or workplace right?

For example:

• Did the employee recently request leave?
  
• Did they raise a workplace complaint?
  
• Did they disclose pregnancy or medical issues?
  

Even if you know the decision is unrelated, it is important to consider how it might appear externally.

6. Provide the Notice Required in the Employment Contract

When terminating employment during probation, employers must still provide:

• The notice period stated in the employment contract, or
  
• Payment in lieu of notice
  

Failing to provide the correct notice can create additional legal risk.

7. Follow a Short, Fair Process

Even when unfair dismissal laws do not apply, a basic fair process is still best practice.

A simple process may include:

1. Raising the concerns with the employee
   
2. Allowing them to respond
   
3. Considering their response
   
4. Making a final decision
   

This approach demonstrates that the decision was considered and reasonable.

8. Keep Clear, Factual Notes

Documentation is one of the strongest protections an employer can have.

Notes do not need to be lengthy. They should simply record:

• Dates
  
• Who attended meetings
  
• What concerns were discussed
  
• What the employee said
  
• What outcome was agreed
  

These notes can become essential evidence if a claim is ever lodged. They might be a file note you have saved, an email to the employee confirming what was discussed, or an email between you and your Practice Manager or Team Lead about performance concerns.

Why Getting Probation Right Matters for Clinic Owners

Hiring new practitioners is one of the biggest steps clinic owners take when growing their business.

Most owners hire because they want to:

• Reduce their clinical workload
  
• Expand patient access
  
• Build a sustainable team
  

But when probation periods are not managed properly, hiring can quickly become stressful.

Clear processes around onboarding, performance expectations, and probation reviews make it much easier to:

• Identify when someone is a great fit
  
• Address concerns early
  
• Make confident decisions if the role is not working out
  

For allied health business owners, this matters because hiring is supposed to buy back your time, not create more pressure. Many clinic owners already feel stretched, overwhelmed by what they need to know, and worried about getting things wrong when it comes to employment obligations. That is exactly why having simple, consistent HR processes in place matters so much.

Need Help with Employment Contracts or Probation Processes?

If you are unsure whether your employment contracts, KPIs, or probation processes are protecting your business, it may be worth reviewing them or implementing them if they do not exist — before your next hire.

I support allied health clinic owners with:

• Employment contracts
  
• KPI structures for practitioners
  
• Probation and performance review processes
  
• HR compliance for growing clinics
  

If you would like help reviewing your setup, book a free call and we can talk through what is currently in place and where improvements could reduce your risk.