Probationary, Casual & Other Exempt Employees
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The unfair dismissal provisions of the various Labour Legislations do not apply to
a. A probationary employee;
b. A Short Term casual employee;
c. An employee engaged for a specific period or task;
d. An employee-
(i) who is not employed under an industrial instrument; and
(ii) who is not a public servant; and
(iii) Who are high wage earners; for instance in Queensland individuals whose annual wages immediately before the dismissal are more than $68,000 or a greater amount stated or worked out in a way prescribed under a regulation
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However, in the case of the probationary employee, the unfair dismissal will apply if the dismissal is for a reason other than an invalid reason. In other words the employer can still be sued if the probationary employee's dismissal is based on an invalid reason, for example, the employees union membership.
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Under most labour legislations an employee is automatically on probation during the first 3 months of employment. The probation period may be reduced to a shorter or no probationary period if both the employer and employee agree in writing before the employment started. It is important that the employment contract clearly specifies that the employee is on probation. Failure to do so means that the employer is required to spend time and money to rebut an allegation of non probationary period.
A probationary period longer than 3 months is permissible, if the period decided by written agreement between the employer and the employee, before the employment started is a reasonable period having regard to the nature and circumstances of the employment.
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Probationary Procedures
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In order to give the employer full protection from any claim the employer should follow the procedures set out in this service in dismissing probationary employees. It is common for employers not to adopt the procedures wrongly believing that they are totally exempted from the unfair dismissal laws. For instance, if the employee claims that dismissal occurred as a result of discrimination then the employer will be forced to defend the claim with little or no documentation to support the employers case.
It is often the case where the employer misses the opportunity to assess the probationary employee properly by not adopting good management systems of training or assessment. It is hoped that by following the procedures a probationary employee is given the opportunity to correct mistakes or problems thus giving the employer a valuable employee at the end of the probationary period.
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Probationary Dismissal
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If a probationary employee is to be dismissed then such dismissal should take place prior to the expiration of the period otherwise there may be allegation by the employee that the employee has become a full time employee.
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A casual employee's position must be confirmed in writing. A written record not only complies with award requirements but also serves to record an agreement between the parties.
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