Circular 2018/4: Using probation effectively
Probation is a critical part of the recruitment process. It is a powerful tool that enables agencies to test whether a person is suited to the Australian Public Service (APS), the agency and the job.
Agencies are strongly encouraged to use the probation period to confirm that new employees can perform effectively in their roles and will be productive participants in the APS workforce.
A well-managed probation period leads to good outcomes for agencies and for employees.
For the employee, it will:
- set clear expectations of performance and behaviour, and provide feedback on how these are being met or how they can be improved; and
- allow them to learn about the job and the work environment, and make a decision on whether the agency and the APS is where they would like to work.
For the agency, it will:
- provide an opportunity for a manager to assess whether a person is suited to the job, the agency and the APS.
If probation is not used effectively, it can lead to the engagement of an unsuitable employee and the need to manage underperformance at a later date.
A decision to end employment during probation is a legitimate action which recognises that not all selection decisions result in an outcome that is right for the employee or the employer.
Agencies should develop policies on probation consistent with their workplace arrangements. Policies should establish clear processes and timeframes that will assist new employees to understand what it required of them, and enable managers to effectively assess the employee's suitability for employment in the agency and the APS.
The letter offering employment should clearly set out the conditions that apply to the probation period. The letter of offer should be clear that employment can be terminated by the agency if conditions relating to probation are not met.
Length of the probation period
The length of the probation period is a decision for the agency. Generally, six months is considered a reasonable period in which to properly determine a person’s suitability. It can be longer. The probation period cannot be extended after the initial period has ended.
However, it may be possible to extend the probation period during probation, subject to an agency’s employment arrangements and provided this was noted as an option at the outset as a condition of probation. A probation period should only be extended where circumstances warrant, for example if the employee has been absent for a significant period due to illness.
If employment is terminated during a probation period of less than six months, the employees would not generally have access to unfair dismissal protections under the Fair Work Act 2009. They may, however, have recourse to lodge a general protections claim under that Act.
Assessment during probation
There are no legislative requirements in relation to how an employee's work performance is to be monitored and assessed during the probation period. However, the APS Values and Employment Principles apply, including that all employees must be treated fairly.
Any issues should be addressed early through continuing feedback. The employee on probation must be given reasonable opportunity during the probation period to address any issues that are identified.
If poor performance or behaviour is not addressed at the during the probation period, it may continue after employment has been confirmed. Managers should take seriously their responsibility to use the probation period effectively to prevent underperformance becoming an issue for the APS into the future.
Ending the probation period
Where an employee has met all the conditions relating to probation, at the end of the period it is good practice to notify them that their employment is no longer subject to probation. All other outstanding conditions of engagement will still apply.
Where conditions of probation have not been satisfactorily met, the agency can end employment under subsection 29(3)(f) of the PS Act during the probation period.
Where employment is terminated during probation because of underperformance, it may not be necessary to go through the agency’s underperformance procedures (subject to the terms of the agency’s workplace arrangements).
Under subsection 22(6) of the Public Service Act 1999 (PS Act), an agency head may impose conditions on the engagement of an APS employee, including matters dealing with probation. Potential employees must be notified of the conditions that will apply to their engagement, including conditions in relation to probation.
Subsection 22(6) of the PS Act can only be used to impose conditions at the time a person is being engaged in the APS. This subsection cannot be used to impose or vary conditions of employment after engagement.
Under subsection 29(3)(f) of the PS Act, an agency head may terminate the employment of an APS employee for failing to meet a condition of engagement. In relation to probation, this subsection can only be used during the probation period.
Peter Woolcott AO
Australian Public Service Commissioner
19 December 2018