Probation enables agencies to assess whether a person is suited to the APS, the agency and the job. A period of probation that is effectively managed supports APS capability by delivering a workforce that has the required skills and attributes to undertake their roles now and into the future.
Within the probation period, an employee is provided with clear expectations of performance and behaviour and can learn about the job and the work environment. Probation also enables an agency the opportunity to assess whether a person is suited to the job and employment within the agency and the APS.
Probation should be used to confirm that new employees can perform effectively in their roles and will be productive participants in the APS workforce. If probation is not used effectively, it can result in the need to manage underperformance in the future.
Legislative basis for probation in the APS
Subsection 22(6) of the Public Service Act 1999 (PS Act) provides that an Agency Head can set probation as a condition of engagement. However this 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.
Section 44 of the Australian Public Service Commissioners Directions 2022 (the Directions) sets out the requirements of Agency Heads with regard to probation. It:
- requires Agency Heads engaging an APS employee, other than an employee engaged for duties that are irregular or intermittent, to ensure the employee is engaged on probation;
- requires Agency Heads to ensure there are robust probation processes in place to assess the suitability; and
- enables Agency Heads to waive this requirement where they are satisfied that there is a reasonable justification
It is intended that probation waivers should only be used in limited circumstances, such as when an employee is engaged on a short term contract. For example, an Agency Head may determine that it is reasonable to waive probation for a non-ongoing employee where the period of engagement is less than the probation period and it is not anticipated that the contract will be extended.
The Directions note that the Commissioner may issue supplementary guidance from time to time that agencies must also comply with. The Commissioner issued guidance on probation on the 1 February 2022 in Circular 2022/03: Probation.
Agencies must have policies on probation that:
- establish clear procedures and timeframes for probation;
- ensure letters of offers clearly set out the conditions that apply to the probation period;
- ensure employees are provided with regular feedback throughout the probation period including ensuring issues are addressed early and the employee has the opportunity to address any issues that are raised; and
- where probation is not satisfactorily completed, ensure employment is terminated under subsection 29(3)(f) of the PS Act.
Establish clear policies, procedures and timeframes
Agency policies should establish procedures to be followed during the probation period that:
- provide new employees with clear expectations of performance and behaviour; and
- enable managers to effectively assess the employee's suitability for employment in the agency and the APS.
Suitability includes performance but also encompasses broader factors such as conduct, attitude and organisational fit.
The probation policy should detail:
- when and how assessments will be undertaken;
- how the employee will be provided with feedback, for example, in addition to providing the employee with verbal feedback, the employee should be provided with a copy of the probation reports; and
- the process for finalising probation which should include where probation is satisfactorily completed and where an employees’ performance or conduct is not satisfactory.
By being specific in the probation policy, both managers and employees are clear on the expectations of the agency, and have the necessary information and support to undertake the probation process.
Length of 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.
APS agencies generally set a probation period of between 3 and 6 months. The length of the probation period should be clearly outlined in the agency’s probation policy. This includes detailing whether a probation period can be extended and under what circumstances.
A period of probation cannot be extended after the initial period has ended.
Note: Employees may have access to unfair dismissal protections under the _Fair Work Act 2009_- external site where they have been with an employer for more than 6 months.
Advising potential employees – Letter of offer
Potential employees must be notified of the conditions that will apply to their engagement, including conditions relating to probation, in the letter of offer.
The letter of offer should include or reference an attached policy that details:
that the probation period will be used to assess whether the employee’s conduct is consistent with the requirements of the agency and APS and whether they are meeting the performance requirements of the role
the length of the probation period
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 and
that ending employment can be actioned by the agency if the conditions relating to probation are not met.
On commencement, new employees should be made aware of the expected performance and conduct requirements of the role, within the agency and across the APS, and how performance and behaviour will be monitored and assessed.
Providing feedback including addressing issues early
The APS Values and Employment Principles apply, which requires that all employees must be treated fairly. Therefore APS agencies must ensure that employees are provided with regular feedback throughout the probation period to support high performance and ensure that any issues are addressed early.
An agency’s policy will usually require a manager or supervisor to provide feedback at certain intervals during the probation period. However to ensure the employee is provided with effective timely feedback, the manager or supervisor should provide feedback more regularly than the scheduled intervals, particularly where issues have been identified.
If an employee’s performance or behaviour is not satisfactory during their probation period, a manager should attempt to address the issues as soon as possible. Agencies must ensure that managers are provided with sufficient support and guidance in addressing issues early including in policy. Employees should be provided with sufficient opportunity to improve during the probation period. If issues are not addressed during the probation period, they are likely to continue after employment has been confirmed. To support managers, and where appropriate delegates, to provide regular feedback, agencies should develop processes that:
- ensure the employee is assessed against:
- clearly defined objectives for the role, including performance measures; and
- requirements for 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; and
- 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 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 an employee fails to meet all the conditions relating to probation, their employment can be terminated under subsection 29(3)(f) of the PS Act. However if the 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.
Terminating an employee’s employment during probation can be 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 assesses a person's suitability for employment. If suitability is not demonstrated during the probation period, then ending the employment relationship is 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 will need to manage underperformance after the probation period has ended.
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; and
- 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.
HR practitioners seeking more information on probation in the APS can contact the Employment Policy team via firstname.lastname@example.org or call the advice line on (02) 6202 3857.