Can you let someone go during probation without a reason?
Usually, yes — in the first 6 months, or 12 with fewer than 15 employees, unfair dismissal claims aren't available. But that is not a blank cheque. You still owe notice, and you can never dismiss for a prohibited reason. That protection starts on day one, and probation doesn't switch it off.
Most owners hear the first half and stop listening. The second half is where the claims come from.
Probation is a contract term. The protection that matters isn't.
Probation is something you write into the contract. The law doesn't set its length. An employer usually decides on the length, and it often runs 3 to 6 months.
Unfair dismissal protection is set by law instead. An employee needs at least 6 months' service to apply, or 12 months with a small business employer.
The two clocks run separately. The Fair Work Ombudsman's own letter template warns that the probation period may be different to the minimum employment period.
That is the first trap. Extend someone's probation to 9 months at a 30-person business, and their unfair dismissal protection still arrives at 6. The contract says probation. The law says protected.
What "small business" means here
The 12-month rule turns on headcount. A small business here means fewer than 15 employees.
The count includes more than you might expect. Full-time and part-time staff count. So do casuals employed on a regular and systematic basis, and employees of associated entities.
This is not the small business test in consumer law, which is under 100 employees or under $10 million turnover. The two tests share a name and nothing else.
Run the count on your own business before you rely on the 12 months:
| Your workforce | The count | Minimum period |
|---|---|---|
| 11 full-time and part-time staff, plus 4 casuals on a regular roster | 15 | 6 months |
| 11 full-time and part-time staff, plus 4 casuals called in once or twice a year | 11 | 12 months |
| 8 staff in your operating company and 8 in an associated company | 16 | 6 months |
The first row is the one that catches owners. Regular casuals count, so a business that feels small can sit just over the line.
What you still owe, even in week two
Ending employment in probation doesn't end your obligations.
Notice. Employees are entitled to a notice period even if their employment ends during probation. For service of 1 year or less, the minimum is 1 week. You can pay instead of notice, at the full rate they would have earned. Casuals, and employees dismissed for serious misconduct, aren't entitled to notice.
Final pay. Outstanding wages, plus any annual leave owing, including leave loading if it would have been paid. Most Awards require final pay within 7 days of the last day. Payment in lieu of notice is due before or on the day employment ends.
Everything in the NES. While on probation, employees continue to receive the same entitlements as anyone else, including the National Employment Standards.
The part that has no waiting period
This is what the "no reason needed" advice leaves out.
You can't dismiss someone because of a protected attribute. Fair Work lists race, colour, sex, sexual orientation, age, disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, and more.
You can't dismiss someone for exercising a workplace right — for example, making a complaint or enquiry about their pay. And you can't dismiss someone for a temporary absence through illness or injury of the kind the regulations cover.
The general protections claim form sets no minimum period of employment. And small businesses are not exempt from these claims.
The law assumes the reason until you prove otherwise
This is the rule that turns a missing note into a real problem.
In a general protections case, the employee alleges you acted for a prohibited reason. Under section 361 of the Fair Work Act 2009, the action is then presumed to have been taken for that reason. The presumption stands unless you prove otherwise.
Most disputes work the other way round. Here, the burden sits with the business. You have to show the real reason, and show it wasn't the prohibited one.
A decision made for a good reason, with nothing recorded, is hard to defend. You are asking the Commission, or a court, to take your word for it.
The cost of losing is not small either. The Fair Work Ombudsman gives a maximum penalty for most general protections breaches. It is $19,800 per breach for an individual and $99,000 for a company. Those figures are built on the old $330 penalty unit, which means 60 units and 300 units.
At the current $364 penalty unit, the same maximums are $21,840 for an individual and $109,200 for a company. Compensation to the employee sits on top of any penalty.
So the real question in probation isn't "do I need a reason". It's "what will the reason look like".
Why "no reason" is the risky choice
When you don't give a reason, one gets supplied for you.
Picture the week before the dismissal. She took two sick days. Or asked why her pay didn't match the Award. Or told her manager she was pregnant. None of that was why you let her go. But nothing on paper says what was.
Timing reads as cause. A decision with no recorded reason, days after a protected event, is exactly what a general protections claim is built on.
The fix costs nothing. Write the real reason down, before the decision, in plain terms: missed targets, attendance, skills that didn't match the role. The Ombudsman's template recommends meeting to explain why probation was unsuccessful and give the employee an opportunity to respond. That is best practice rather than a legal requirement in probation. It is also the best evidence you will ever have.
Three probation dismissals, three different risks
The same decision carries a different risk depending on timing and headcount. Three examples:
| Situation | Unfair dismissal claim? | General protections risk | What to do |
|---|---|---|---|
| Week 5 at a 9-person business. Missed deadlines, raised twice in writing | No. Inside the 12 months | Low, if nothing protected happened recently | Meet, give the reason, pay a week's notice |
| Week 10 at a 9-person business. Took 3 days' sick leave the week before | No. Inside the 12 months | High. The timing points to the leave | Get advice first. Check the performance record predates the leave |
| Month 7 at a 30-person business. Probation extended to 9 months | Yes. Past 6 months | Depends on the reason | Treat it as a full dismissal: valid reason, warning, chance to respond |
The third row is the one the contract hides. Probation still says "on trial". The law says the employee has full unfair dismissal rights.
The deadline on the other side
Claims move fast. An unfair dismissal application has to be lodged within 21 days of the dismissal taking effect. A general protections dismissal claim has the same 21 calendar days, and the Commission can extend it in exceptional circumstances.
Three weeks is not long. Whatever you wrote down at the time is what you will be working from.
After 12 months: the small business code
Once a small business employee passes 12 months, the Small Business Fair Dismissal Code becomes relevant. The Commission will rule a dismissal fair if the employer can show the Code was followed.
Outside summary dismissal, that means a valid reason based on conduct or capacity, a warning, and a chance to respond. Building that habit in probation means you already have it when it counts.
Run probation as a process, not a date
Most probation disputes start with a probation that nobody ran. The end date arrives, the manager has a feeling, and there is nothing written down either way.
A simple structure fixes most of it:
In week 1, write down what "passing" means for the role. Three to five measurable points
At the halfway point, meet and give a short written update against those points
When there's a problem, raise it when it happens, in writing, with an example
Two weeks before the end, decide. Confirm the pass in writing, or start the dismissal steps below
Nothing here is required by law in probation. All of it becomes evidence if the reason is ever questioned. It is also fairer to the employee, who learns early what is going wrong.
If you can't decide at the end, be careful about extending. A longer probation doesn't delay the minimum employment period. It can only create the impression that the employee is still unprotected.
What to put in the letter
Keep the letter short and factual. The Ombudsman's template is a sound starting point. It should say:
That employment is ending, and the last day
The reason, in one or two plain sentences
The notice period, or that payment in lieu is being made
What final pay includes: wages owing, annual leave and any loading
When final pay will be made
Leave out anything you can't support. A letter that says "not a cultural fit" invites the question of what that means. A letter that says "three missed client deadlines in August, discussed on 12 and 26 August" answers it.
How to protect your business
Five checks for any probation dismissal.
Check the real service date, not the probation date. Six months, or 12 at a small business, counting regular casual service before they went permanent.
Look at the last month. Leave taken, complaints raised, pregnancy or carer news, a workplace injury. If any of it is there, slow down.
Write the reason down before you decide. Specific, dated, about performance or conduct.
Meet, explain and listen. Give them the reason and a chance to respond. Keep a note.
Pay notice and final pay correctly. One week or pay in lieu, leave owing, within the Award's timeframe.
What the contract should say
The contract sets up most of this.
The version that invites a problem:
The first six months of employment are a probationary period, during which either party may terminate this agreement at any time without notice.
"Without notice" is below the floor, so that part has no effect. And "six months" on a small business contract suggests protection ends then, when it doesn't start until 12.
The version that holds up:
The first three months of employment are a probationary period. During it, either party may end employment by giving one week's notice, or payment in lieu. Probation does not affect any entitlement under the National Employment Standards.
Shorter, lawful notice, and honest about what probation does. For the rest of the employment contract, see what to check before you send one.
When to call a lawyer
The employee has just exercised a right. Sick leave, a pay complaint, parental leave, a workplace injury. Get advice before you act, not after.
A claim has arrived. Twenty-one days moves quickly.
The role is senior or the contract is unusual. Longer notice, bonuses or restraints change the picture.
What this doesn't cover
Enterprise agreements, which can set their own probation and dismissal terms. State public sector employment. Discrimination claims under state and federal anti-discrimination laws, which run alongside the Fair Work system. And redundancy, which has its own rules.
Verified 28 September 2026, against the probation, unfair dismissal, dismissal, final pay, notice, protections at work, discrimination and small business pages on fairwork.gov.au, the minimum employment period, casual service, temporary absence and general protections pages on fwc.gov.au, and section 361 of the Fair Work Act 2009 on legislation.gov.au.
The contract decides what probation actually means. Upload the employment contract you use today. The probation and notice clauses are checked against the NES and the minimum employment period. Anything below the floor comes back rewritten.
Contractam provides contract analysis and information, not legal advice. For advice specific to your situation, consult a qualified Australian lawyer. Contractam analyses contracts under Australian law only. See our disclaimer.