Can I fire an employee on probation in Australia?

Yes, you can terminate an employee during probation in Australia. But probation is not a free pass, and it does not protect you from every type of claim. For growing businesses, probation terminations go wrong not because they are unlawful, but because they are rushed, poorly explained, or badly timed.

This is one of the most common points where business owners seek HR advice after the fact.

Why probation exists (and what it actually does)

Probation is designed to assess suitability, not remove legal obligations.

Probation periods exist to allow employers to assess:

• capability
• fit for role
• alignment with expectations

From a legal perspective, probation primarily affects access to unfair dismissal claims. Employees who have not completed the minimum employment period are generally unable to bring an unfair dismissal claim.

However, probation does not remove:

• general protections obligations
• discrimination protections
• the requirement to act reasonably

This distinction is where many businesses misunderstand their risk.

Why probation terminations become risky for growing businesses

At under 100 employees, probation decisions are often handled informally and inconsistently.

In smaller businesses:

• founders often handle early hires personally
• managers may be new to people leadership
• documentation is light or non-existent
• conversations are verbal and well-intentioned

As the business grows, those same habits start to create exposure.

Probation terminations become risky when:

• different managers handle them differently
• reasons are explained casually
• documentation happens after the decision
• timing overlaps with complaints or leave

Growth doesn’t create new laws.
It exposes weak process.

What probation does not protect you from

Probation does not prevent claims based on unlawful reasons.

Even during probation, employees may bring claims such as:

• general protections (adverse action)
• discrimination
• workplace rights breaches

These claims focus on why the termination occurred, not how long the employee was employed.

If the termination appears connected to:

• raising concerns
• requesting leave
• illness or injury
• personal attributes

Probation will not shield you.

This is why probation terminations require discipline, not speed.

What businesses commonly get wrong during probation

Most problems arise from language, not intent.

Common mistakes include:

• giving too much feedback during the termination conversation
• referencing attitude, stress, or personality
• reacting quickly after a complaint or request
• trying to be “honest” instead of precise
• documenting reasons after the decision has been made

In an effort to be human, businesses often overshare.

Unfortunately, oversharing is what creates legal narratives.

What “reasonable” actually looks like in practice

Reasonableness is about coherence, not complexity.

In most probation terminations, reasonable process includes:

• clear expectations set early
• at least one documented performance or fit conversation
• factual reasoning tied to the role
• timely decision-making
• consistent messaging

You do not need:

• a formal performance improvement plan
• months of warnings
• a long paper trail

But you do need a story that makes sense from start to finish.

Timing: the risk multiplier most employers underestimate

The timing of a probation termination can create risk even when the reason is valid.

Terminations during probation carry higher risk when they occur:

• shortly after an employee raises a concern
• shortly after a leave request
• shortly after returning from illness or injury

Even if performance is genuinely the issue, poor timing creates suspicion.

This is how general protections claims are formed.
Not through bad intent, but through bad sequencing.

The decision most business owners struggle with

Many founders hesitate because probation feels both simple and dangerous.

Common internal dialogue sounds like:

• “We should act now while we still can”
• “But what if they do something?”
• “What do we even say?”

This hesitation often leads to:

• delay
• mixed messages
• rushed decisions later

Ironically, waiting often increases risk rather than reducing it.

Risk-based options during probation

There is no single “right” way to terminate during probation. There are safer and riskier options.

Lower risk:

• early termination with clear, documented rationale
• neutral language focused on role fit
• minimal explanation

Medium risk:

• extending probation without clarity
• mixed performance feedback
• informal documentation

Higher risk:

• delaying until after complaints
• giving detailed personal feedback
• terminating reactively

Good HR advice helps businesses choose the least risky option, not the perfect one.

What good HR support looks like at this point

Probation terminations are where ad hoc HR advice delivers the most value.

For businesses under 100 employees, HR support at this stage usually involves:

• pressure-testing the reason
• sense-checking timing
• refining wording
• ensuring documentation aligns

This is not about adding process.
It’s about avoiding preventable mistakes.

Before you make the call

Probation terminations work best when they are early, calm, and deliberate.

If you’re hesitating because the situation feels unclear or poorly timed, that’s usually the moment to pause and get advice before acting.

👉 Get free initial HR advice before making the decision.