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Best Practice for Probation Dismissals

15 June 2022

Do you have to provide a reason for dismissal?

In the realm of recruiting new talent, the issue of dismissing an employee during their probationary period often arises. A key question that employers grapple with is whether they are obligated to provide a reason for termination.

When an employee has not completed the minimum employment period, they are not entitled to claim unfair dismissal. This leads many businesses to ponder whether a reason for dismissal needs to be given and formally documented.

While it's true that employers aren't legally required to provide a reason for dismissal, it's advisable to do so. This proactive step can help mitigate the risk of the employee seeking compensation, especially if their perception of the dismissal differs from the employer's. Although unfair dismissal claims aren't applicable during the probationary period, employees may still pursue a general protections claim.

General protections claims can be made by employees who believe they were dismissed for unlawful reasons, such as discrimination or for exercising workplace rights. These claims, governed by the Fair Work Act, have no minimum employment period requirement and present various challenges for employers. Some reasons employees may pursue such claims include the availability of uncapped damages, the broad scope of applications, and the reverse onus of proof, where employers must demonstrate they didn't dismiss for unlawful reasons.

This burden of proof places significant strain on employers, making it essential to provide clear reasons for dismissal supported by performance management documentation. This proactive approach not only strengthens the employer's position in potential legal proceedings but also discourages employees from pursuing general protection claims due to the associated costs and likelihood of ruling in the employer's favour.

In light of these considerations, it's strongly recommended to provide employees with clear reasons for dismissal along with supporting documentation. For expert guidance on minimising the risk of employees bringing general protection claims against your organisation, don't hesitate to contact us.

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