FWC case shows widespread confusion over probation and general protections
Multiple lawyers told a dismissed worker she had no case during probation. A Fair Work Commission ruling shows they got it dangerously wrong.
When Lorraine Kimberley was dismissed from Secure Journeys Pty Ltd on July 10, 2025, she did what many shocked employees do: she called lawyers. Not just one, but several. The advice came back unanimous. Being on probation meant she had nowhere to go, nothing to fight.
Except that wasn't quite right.
Months later, after the deadline had passed and she had moved on to new work, another lawyer gave different advice. There might have been grounds for a general protections claim after all. By then it was November 7, 2025, and Kimberley was 99 days past the 21-day filing deadline.
The Fair Work Commission faced a question on February 6, 2026: should she get more time? Deputy President Beaumont said no, but the case itself exposes a troubling gap in understanding about probationary rights.
General protections apply to everyone on the payroll, probation or not. Employers can still dismiss probationary workers for genuine performance or cultural fit reasons, but they cannot terminate someone for exercising workplace rights. That distinction matters, and apparently even legal professionals sometimes miss it.
Kimberley argued she deserved an extension because of what she had been through. The shock of sudden dismissal. Mental and emotional strain from losing her income. Caring for two people, including someone hospitalized in late August 2025. The conflicting legal advice that sent her down the wrong path.
The Commission was unmoved. Deputy President Beaumont found that stress and financial hardship after job loss are not unusual. As for the caring responsibilities, one person had been hospitalized for 13 days from August 30 to September 11, 2025, but hospital staff were providing care during that time. The other caring duties were shared with her husband. More tellingly, these responsibilities "do not appear to have negatively impacted upon the Applicant's ability to obtain further employment or to have sought out, on multiple occasions, legal advice."
The decision noted that Kimberley herself admitted she "did not want to burden herself by pursuing her application within the statutory timeframe." That showed she had made "a choice to place little urgency and importance on the timely making of her application."
On the wrong legal advice, the ruling was blunt. Not knowing the law does not count as exceptional circumstances.
What had Kimberley claimed as her workplace right? She said she asked questions about owed penalty payments, when more staff would start, and how programs were running without adequate staffing. Secure Journeys countered that it had "a clear and documented basis for a lawful probationary termination unrelated to any purported workplace right."
That documentation proved critical. The employer's evidence was "contemporaneous, consistent and corroborated by documents," the Commission found. Even though the case never reached a hearing on the actual merits, that paper trail demonstrated how proper record-keeping protects employers when claims surface months down the track.
The application was dismissed on procedural grounds. But the underlying message cuts through: probation does not mean immunity from general protections claims. HR teams dismissing probationary workers still need legitimate reasons and thorough documentation, because the same laws apply from day one.
