Probationary periods in the spotlight

by 08 Jul 2016
Lisa Burrell outlines the risks and opportunities presented by probationary periods
The cost of ‘getting it wrong’ in the recruitment and selection stages include direct costs such as placement fees, through to broader workplace impacts on staff motivation and morale.
Not every hire is right, every time. No business or manager ever seeks to employ anyone other than the right person; however, when it does happen, steps may ultimately need to be taken to end the employment – and ideally integrate any learnings from the process.
The framework
The probationary period is essentially a nominated trial period for both parties to  assess the suitability of the employment relationship.
While they are different concepts, the concept of probationary periods has been somewhat superseded for a number of employee groups following the introduction of the Fair Work Act, with a minimum ‘qualifying period’ of six or 12 months’ employment (depending on the size of the business) required in order to lodge an unfair dismissal claim. In practice, many employers have amended their terminology in employment offers to reflect this language and associated timeframe.
The risks
The risks are of course not limited to dismissal and associated claims. It is important, however, that decision-makers in your business are su­fficiently aware of the risks arising from discrimination, WorkCover and the general protections (“adverse action”) coverage of the Fair Work Act. We continue to see lodgement of adverse action claims where claimants are excluded by the minimum qualifying periods.
Outside of claims, there are the costs of replacement, which can include recruitment time and agency fees, role coverage, overtime, client impacts, personal staff opinions (there are many situations in which the individual has formed connections with at least one colleague), and workload for the existing team can also present a turnover risk.
The opportunities and mitigations
There are opportunities to minimise the risk and impact, on both the individual and the organisation. While there is no obligation to redeploy someone who is simply not performing, there are instances where this can be done successfully – this can occur if the performance deficit is technical rather than behavioural or attitudinal.
Feedback and documentation outlining the reasons for termination are also not obligatory during his period, but can be instrumental in helping the employee better understand and accept the decision. This can also act as a protection for your business if faced with a claim citing that circumstances other than performance were the reasons for dismissal.
Communication and the manner in which the individual leaves should be closely managed to minimise disruption. This period can act as an opportunity to enforce the value that the current employee group delivers, and a desire to protect and support that in the longer term.
We are seeing some innovative practices around the reviews of failed initiatives or outcomes within workplaces more generally. We see analysis of the hiring managers’ ‘hindsight’ views and interviews, and reviews of the performance gaps compared against hiring information. While exit interviews are frequently conducted, these other aspects are usually informal and limited. Valuable insights gained can be used in future selection activities, which might include further exploration or explanation of key aspects of the role, tightening up reference checking, and incorporation of practical assessments and scenarios.
The take-out
While the end of a probationary period can be difficult, this mechanism is in place for a reason.
Employees are also trialling their new workplace, and while everyone hopes a new working relationship will be successful, both parties can ultimately take learnings from cases where it doesn’t work out.

Lisa Burrell is the general manager of the Victorian Employers' Chamber of Commerce and Industry (VECCI). VEECI is Victoria’s most influential employer group, servicing over 15,000 Victorian businesses per annum. An independent, non-government body, VECCI was founded in 1851 by the business community to represent business.