NSW Probation Question

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rmooreau

Active Member
25 June 2015
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Hi, I've been with my Employer for 6 months and reaching the end of the minimum probation period as defined in my contract.

A new manager has started and he has stated he is extending my probation period as he has just started, needs to understand business, what the team needs etc.

My previous manager had mentioned he would sort this out before he left, but hadn't.

There is no clause in my contract stating they can extend the contract. Can they lawfully extend it without my agreement? Is this considered a reasonable excuse?
 

Docupedia

Well-Known Member
7 October 2020
139
11
414
Probation periods don't mean much and aren't recognised by the Fair Work Act. What the Act talks about is the 'minimum employment period' (MEP) before an employee can take advantage of the unfair dismissal protections.

This is:
- 12 months for small businesses (less than 15 employees)
- 6 months for other businesses (i.e. 15 or more employees)

Probation is put in place to allow summary dismissal without much/any cause because 'you're not suitable for the position'. Once you reach the relevant MEP you can avail yourself of the unfair dismissal protections regardless of what the probation period is.
 

rmooreau

Active Member
25 June 2015
10
0
31
I decided to pursue this as my contract stated a salary review at the end of the successful completion of the probation period.

Within hours of me telling them I was unable to accept the decision to extend and consider it completed they fired me.

Today is the day the MEP starts and probation finishes. My question is, would the MEP begin at midnight this morning or tonight, being the end of the day? Likewise with the finishing of the probation period?
 

Docupedia

Well-Known Member
7 October 2020
139
11
414

Rod

Lawyer
LawTap Verified
27 May 2014
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937
2,894
Probation means nothing when determining eligibility for an unfair dismissal claim.

It may count when looking at the size of any loss you may claim. You may have a common law claim for breach of contract.