The importance of probation
Probation is a critical part of the recruitment process. During probation, an agency assesses whether a person is suited to the APS, the agency and the job. A period of probation which is effectively managed supports capability by delivering a workforce that is fit for purpose, productive and accountable.
Where the condition of probation has not been satisfactorily met, the agency can end employment.
Action 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. Probation is a period which tests a person's suitability for employment. If suitability is not demonstrated during the probation period, then ending the employment relationship can be in the best interests of both parties.
In circumstances where an employee's conduct or performance fails to meet requirements and an agency does not take action during the probation period to terminate employment, then the agency may need to manage underperformance after the probation period has ended.
Conditions of employment during probation
An agency must comply with its enterprise agreement or other instrument setting terms and conditions of employment during the period of probation.
When developing an enterprise agreement or other industrial instrument, agencies should consider whether some conditions should be specifically excluded for employees during their period of probation–for example provisions that apply to redundancy; or procedures relating to Code of Conduct investigations established under subsection 15(3) of the PS Act.
Agencies should develop policies on probation consistent with the legislative framework and individual agency enterprise agreements.
Agency policies should establish processes to be followed during the probation period that:
- 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.
Potential employees must be notified of the conditions that will apply to their engagement, including conditions in relation to probation.
It is good practice for an agency's letter offering employment to make clear these conditions and include:
- that there are requirements in relation to conduct and performance, and the probation period will be used to assess whether these are being met
- the period of probation
- circumstances under which the period of probation can be extended, and for how long
- reporting intervals and responsibilities
- any special conditions in the agency enterprise agreement that apply—or do not apply—during the probation period
- that employment can be ended by the agency if the conditions relating to probation are not met.
At the time of engagement, all employees should be made aware of specific requirements in relation to conduct and performance, and how performance and behaviour will be monitored and assessed.
The probation period
There is no legislative requirement for a minimum or maximum period of probation. The period should provide sufficient opportunity to assess the suitability of the person for employment.
It is common practice in the APS to set an initial period of three months, with the possibility that this period be extended for a further three months–i.e. up to a total of six months.
The period cannot be extended after the initial period has ended.
Note: Employees may have access to unfair dismissal protections under the Fair Work Act 2009 where they have been with an employer for more than six months.
The assessment process
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 requirements to treat all employees fairly.
It is good practice to develop processes that:
- assess the employee against:
- clearly defined objectives in relation to work, including performance measures, and
- requirements in relation to conduct, including attendance
- provide ongoing feedback to the employee from the supervisor or manager
- record discussions between the employee and the supervisor or manager
- provide the employee with a reasonable opportunity to address any concerns
- submit regular reports to the agency head or delegate
- ensure that before the end of the probation period, a decision is made on whether conditions have been successfully met, and the employee is notified of the decision.
End of probation
Where employment is to continue
Where an employee has met all the conditions relating to probation, it is good practice to advise the employee that their employment is no longer subject to probation. Any other outstanding conditions related to engagement will still apply.
Where employment is to be terminated
Where matters relating to probation have been established as conditions of engagement and an employee fails to meet these conditions, employment can be terminated under subsection 29(3)(f) of the PS Act.
Employment can only be terminated for failing to satisfy conditions in relation to probation before the end of the probation period.
A notice of termination is not effective until it is received by the employee, regardless of the date of the decision.
Before terminating employment, it is important for the agency to:
- follow relevant agency procedures
- ensure that notice of an intention to terminate is received by the employee before the end of the probation period
- give the employee reasonable opportunity to make a case—before the end of the probation period—that termination should not occur
- act in accordance with the APS Values and Employment Principles.
Note: The Fair Work Act 2009 makes it unlawful for an employer to terminate employment for certain reasons, including (among other things) temporary absence from work because of illness or injury, physical or mental disability, family or carer's responsibilities or pregnancy.
Public Service Act 1999
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.
If a condition is not imposed at the time of engagement, then subsection 29(3)(f) of the PS Act cannot be used by an agency to end employment if the condition is not met.