“They’re on probation, so we can just let them go, right?”
It’s a question that gets asked far too often. And while it might seem like probation gives employers more leeway, that assumption can land a business in serious trouble.
Probation isn’t a legal free pass. It’s a critical stage in the employment relationship where obligations still apply. If anything, it’s a period where process matters even more. From how you document expectations to how feedback is delivered, every step can influence how the relationship plays out (and how well you’re protected if things don’t work out).
Let’s break down what probation actually is, where employers can go wrong, and what a fair, compliant approach looks like from day one.
What "probation" actually means
Probation is the early phase of employment – typically three to six months – where both sides assess fit. Think of it as a chance to see how the role suits the employee, how they settle into the team, and whether they meet the expectations of the business.
Steve Forster, General Counsel at EPG Group notes that, “It’s also the point where many employers mistakenly assume that compliance takes a back seat. That’s not the case. Anti-discrimination laws and general protections provisions in the Fair Work Act 2009 still apply. So do notice requirements and fair processes. If a decision is ever challenged, how you handled probation can come under scrutiny.”
The reality is simple: probation is not a loophole, it’s a time to test suitability. But it has to be done the right way.
Common probation myths
Myth 1: "There are no rules during probation."
This is one of the most dangerous assumptions. While unfair dismissal protections do not apply until an employee has completed the minimum employment period (i.e. six months or 12 months for small employers with fewer than 15 employees), that doesn’t mean you can dismiss without consequence. Like we said before, anti-discrimination laws still apply as do the general protections provisions in the Fair Work Act 2009. So do notice requirements and procedural fairness. Poorly handled decisions, even early on, can still result in legal claims.
Myth 2: "Feedback can wait until the end."
Waiting until the final week of probation to raise concerns is a mistake. If the employee hasn’t been given feedback or a chance to improve, a dismissal can look arbitrary and even potentially breach the general protections provisions, which prohibit an employer from taking adverse against an employee in relation to the future exercise of a workplace right. This includes the right to bring an unfair dismissal claim. In a recent case, a Court issued an interim injunction to reinstate an employee dismissed in the final hours of probation. Why? Because it agreed that the reason for acting in such haste gave rise to a reasonable argument that the real motive behind the dismissal was the avoid a future unfair dismissal claim.
This is not permitted. Probation should involve ongoing, documented feedback. It’s the only way to show that the process was reasonable if a decision is later questioned.
Myth 3: "It's all about performance."
Performance is important, though it’s not the full picture. Cultural fit, communication style, and the ability to work within your systems and team also matter. If an employee is technically capable but constantly clashes with others or disregards company values, that’s just as relevant. These issues should be part of the feedback and review process too. That said, care must be taken with culture assessments, particularly to avoid the potential for unconscious bias and discrimination risk.
Why a proper probation process matters
Getting probation right isn’t about ticking boxes, either. It’s about setting the tone for the employment relationship. A structured, consistent process protects your business from risk, gives the employee a fair chance to succeed, and makes it easier to reach a clear decision when the time comes.
It also supports retention. New starters who feel supported and know what’s expected of them are more likely to stay and perform well. Conversely, unclear expectations and patchy communication can drive good people away early.
What a good probation process looks like
This starts with the contract. The probation clause should set out the length of the period, any potential for extension (which should not exceed the minimum employment period in the Fair Work Act 2009, and the minimum notice required during this time. Make sure this is adequately communicated and understood before the employee starts.
Next comes onboarding. This shouldn’t just be forms and introductions – it’s your first opportunity to give the employee the tools, training, and context they need to do the job properly. It’s also when you set goals, not vague statements, but practical targets that help both sides assess progress.
Throughout probation, regular check-ins are essential. Managers should meet with probationary employees weekly or fortnightly to discuss progress. These conversations should be documented and provide an opportunity for two-way feedback. Early intervention allows employees to correct course if needed and helps avoid surprises later.
A mid-probation review is also good practice. This is where you take stock, assess how things are tracking, and decide whether any extra support or course correction is needed.
Finally, a week or two before the end of the period, hold a proper review. Revisit the goals that were set. Look at how the employee has performed across key areas (not just tasks) but collaboration, communication, and alignment with values. If the outcome is confirmation, document the decision. If not, ensure the rationale is clear and supported by prior feedback.
Tools to support the process
You don’t need an expensive system to manage probation, though you do need a consistent one. Whether it’s a shared document, a checklist, or a digital workflow, the key is that it’s applied fairly across the board.
Tools like Xemplo can help simplify the process. From setting onboarding tasks to prompting regular check-ins and tracking review outcomes, it provides managers and HR with the visibility they need to stay on top of things. And if you ever need to defend a decision, having everything recorded in one place makes a big difference.
Advice for employers
Start strong. Be clear on what probation means and how it will be assessed. Train your managers – they’re often the ones having the conversations, and they need to know how to provide feedback and escalate issues.
Don’t wait until something goes wrong. Managing probation well isn’t about being reactive; it’s about creating a repeatable process that’s fair to the employee and safe for the business.
If you’re ever unsure whether to confirm employment at the end of the period, consider an extension. Just be transparent on the "why" and ensure expectations for that extension are documented and agreed upon.
The bottom line
Don't think of probation as just another formality. This is a legally sensitive period that deserves attention. Executed well, it lays the groundwork for long-term employment and helps protect your business from risk. Executed poorly, it can undo a relationship before it begins, or worse... result in costly disputes.
If you’re already using Xemplo, the Performance module makes probation management easy to track and action. You can get started directly from your dashboard with built-in guidance every step of the way.
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