The Probation Period Puzzle: Can You Extend It in Australia?

Posted On

October 13, 2023

Posted By

Kylie Thomas

“Can I extend an employee’s probation period?” is a question that keeps many Australian business owners up at night. This blog post aims to demystify the complexities surrounding probation periods, specifically focusing on whether you can extend them.

“Probation periods are not a ‘get out of jail free’ card; they are bound by legal frameworks that both employers and employees must respect.”

What is a Probation Period?

A probation period is essentially a trial period during which both the employer and the employee assess each other’s suitability for ongoing employment. Typically, probation periods in Australia range from 3 to 6 months.


  • Clearly outline the terms of the probation period in the employment contract.
  • Use this period to evaluate an employee’s skills, work ethic, and cultural fit.

The Legal Landscape: Navigating the Fair Work Act

Before you consider extending a probation period, it’s crucial to understand the legal framework under the Fair Work Act. Failure to comply with this legislation can lead to claims of unfair dismissal, which can be both costly and damaging to your business reputation.

“Understanding the Fair Work Act is not just a legal necessity; it’s a business imperative.”

Minimum Employment Periods

The Fair Work Act specifies minimum employment periods before an employee can claim unfair dismissal. These periods vary depending on the size of your business:

  • Businesses with 15 or more employees: A minimum employment period of 6 months.
  • Businesses with fewer than 15 employees: A minimum employment period of 12 months.

Probationary Periods and Unfair Dismissal

Although some employment contracts may stipulate probationary periods of only three months, new employees technically cannot make unfair dismissal claims unless they have worked for:

  • One year for businesses with fewer than 15 employees.
  • Six months for businesses with 15 or more employees.

The Risk of Extending Probation Periods

If you choose to extend your employee’s probationary period, be aware that the provisions under the Fair Work Act could come into play. Specifically, your employee could claim unfair dismissal if:

  1. You extended their probationary period, and
  2. This extension allows the employee to meet the minimum period of employment under the Act.


  • Always consult with a legal advisor or the team at DreamStoneHR before extending a probation period.
  • Make sure to get written consent from the employee for the extension.

So Can You Extend the Probation Period?

Yes, but there are conditions. You can extend a probation period if:

  • The employee agrees to the extension.
  • The employment contract allows for an extension.

“Extending a probation period is not a unilateral decision; it requires the consent of the employee.”


  • Always get written consent for the extension to minimise legal risks.
  • Review the terms of the employment contract carefully.

The Importance of Communication

Effective communication is key when considering extending a probation period. Both parties should be clear on expectations, performance metrics, and the reasons for the extension.


  • Schedule a one-on-one meeting to discuss the extension.
  • Provide constructive feedback and set achievable goals.

The Ethical Considerations

While it’s crucial to protect your business interests, it’s equally important to treat employees fairly. Ethical considerations should not be overlooked when extending a probation period.


  • Transparency: Be open about why you’re considering an extension.
  • Equality: Ensure that all employees are subject to the same probationary terms.

Understanding the intricacies of extending probation periods is crucial for any business owner in Australia. Always consult with the team at DreamStoneHR beforehand and be transparent with your employees.

If you’re a business owner grappling with probation period complexities, don’t navigate these waters alone. Seek professional advice to ensure you’re making informed decisions.

Explore DreamStoneHR’s Free Resources Today!

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Check out our Free Resources section, regularly updated with practical guides, checklists, and expert advice tailored to your HR needs. From hiring best practices to compliance guidelines, we’ve got you covered.

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