Probation Period in an Employment Contract: Your Rights, Notice and Unfair Dismissal (Australia, 2026)

This guide is for employees in the national workplace relations system who have been offered a contract with a probation clause. It covers what probation can and cannot do, what happens if the job ends during it, and the probation terms worth checking before you sign. Law checked 9 November 2026.

Probation at a glance

What is a probation period?

A probation period is a stretch of time at the start of a job, set by your contract, in which the employer checks you are suitable for the role. The Fair Work Ombudsman describes it as giving “an employer and employee an opportunity to check that employees are suitable for the role they’ve been hired to do.”

Probation is a contract term, not a separate kind of employment. An employment contract “can’t remove or provide for less than an employee’s minimum entitlements” (Fair Work Ombudsman). The National Employment Standards “cannot be displaced” (Fair Work Act s 61(1)), and an employer must not contravene them (s 44) or an applicable modern award (s 45).

How long can a probation period be?

The Fair Work Act does not set a length. The Fair Work Ombudsman says: “An employer usually decides on the length of the probation period. It often ranges from 3 to 6 months, beginning from when the employee starts employment.”

The time that matters for unfair dismissal is the minimum employment period in the Fair Work Act (s 383), and a contract cannot change it. A 12-month “probation” clause with an employer of 15 or more staff does not stop you claiming after 6 months, and a 3-month probation does not make you eligible sooner.

Can my employer extend my probation?

That depends on what your contract says. Some contracts allow an extension, some do not mention it. Before you sign, check whether the contract lets the employer extend probation, for how long, and whether it must tell you in writing and before the original period ends. Whatever the contract says, an extension does not change the minimum employment period or reduce your entitlements.

What are my rights during probation?

The same as an employee who is not on probation. The Fair Work Ombudsman says this “includes the entitlements in the National Employment Standards.” In practice that means:

• Pay. At least the modern award rate for your role, unless you are a high income employee (Fair Work Act s 47(2)). A lower “probation rate” that falls below the award is still underpayment.
• Leave. “If hired on a full-time or part-time basis, an employee on probation is entitled to accrue and access their paid leave entitlements, such as annual leave and sick leave” (Fair Work Ombudsman). The National Employment Standards give 4 weeks of paid annual leave a year (s 87) and 10 days of paid personal/carer’s leave a year (s 96), not for casuals.
• Super. Most employees must be paid super from the start; the rate is 12% (Superannuation Guarantee (Administration) Act s 17A(2)). Under-18s working 30 hours a week or less are an exception (s 28).

A clause saying you “do not accrue leave” or “cannot take sick leave” during probation gives less than the National Employment Standards. Flag it before you sign.

Can I be dismissed during probation?

Yes, an employer can end employment during probation, but probation does not remove the minimum rules for doing so.

You still get notice

The Fair Work Ombudsman says: “Employees are entitled to a notice period even if their employment ends during their probation period. They must be allowed to work their notice period or be paid out in lieu based on their length of service.” The employer must give written notice of the day your job ends (Fair Work Act s 117(1)). With 1 year or less of continuous service, the minimum notice under the National Employment Standards is 1 week (s 117(3)). An award, enterprise agreement or your contract may give you more.

If you do not pass probation, the Fair Work Ombudsman says you are still entitled to “receive notice when employment ends” and to “have their unused accumulated annual leave hours paid out.”

Some employees do not get notice under the National Employment Standards. The Fair Work Ombudsman lists them, including employees who are casual, employed for a specific period of time, season or task, or dismissed for serious misconduct (s 123).

A contract that says “either party may end employment without notice during probation” is the clause to watch. For an employee who is entitled to notice under the National Employment Standards, the contract cannot give less (s 61, s 44).

Can I claim unfair dismissal during probation?

Not until you have completed the minimum employment period, whatever the probation clause says. Under the Fair Work Act (s 383), that period is:

• 6 months if the employer is not a small business employer;
• 1 year if it is a small business employer, meaning fewer than 15 employees (s 23). Casuals count only if employed on a regular and systematic basis, and employees of associated entities are counted together.

You must also be covered by an award or enterprise agreement, or earn less than the high income threshold, which is $190,100 from 1 July 2026 (s 382(b); Fair Work Ombudsman). An application must be made within 21 days after the dismissal took effect (s 394(2)(a)).

Other dismissal claims

Unfair dismissal is not the only route. The Fair Work Ombudsman says: “If an employee believes they were terminated because they used their workplace rights, they can consider making a general protections application.” A general protections application involving dismissal must also be made within 21 days (s 366(1)). Some employees who are not eligible for a general protections application can apply to the Fair Work Commission about unlawful termination. The 21-day limit is short and negotiating with the employer does not stop the clock.

Can I resign during probation?

Yes. The notice you must give depends on your award, enterprise agreement or contract. The Fair Work Ombudsman says: “An award, enterprise agreement or employment contract may set out how much notice an employee needs to give an employer.” Many contracts set a shorter notice period on both sides during probation; check yours.

• Casual employees “don’t have to give notice to their employer when they resign” (Fair Work Ombudsman), although it is best practice to tell the employer your last day.
• Award and agreement free employees do not have to give notice unless the contract requires it. If the contract says nothing about notice, you “might need to give their employer reasonable notice” (Fair Work Ombudsman).
• Short notice. Most awards let an employer deduct up to one week’s wages if an employee aged 18 or over does not give the award notice and the deduction is not unreasonable. Employers can only deduct wages owed under the award, not leave or other over-award payments (Fair Work Ombudsman).

Probation in casual and fixed-term jobs

Casuals and employees on a contract for a specified period are outside the notice rules (s 123), so a probation clause changes little for them. Calling a role casual does not make it casual: the test is “the real substance, practical reality and true nature of the employment relationship” (s 15A(2)(a)).

Probation clauses to check before you sign

1. Length and start date. When does probation start and end? Is it longer than the role needs?
2. Extension. Can the employer extend it, how many times, and with what notice to you?
3. Notice during probation. Is it at least the National Employment Standards minimum (1 week with 1 year or less of service)? Is it the same for both sides?
4. Leave. Does it say you accrue no leave, or cannot take sick leave, during probation? That gives less than the National Employment Standards.
5. A lower probation rate. Is the pay during probation still at or above the award?
6. Repayments if you leave early. Training costs, relocation or sign-on bonuses that must be repaid if you leave during probation. A requirement to pay money that is unreasonable and for the employer’s benefit can contravene the Fair Work Act (s 325), and a contract term permitting an unreasonable deduction for the employer’s benefit has no effect (s 326).
7. What happens at the end. Whether you will be told in writing that you have passed, and whether pay or conditions change after probation.

Asking for a change before you sign is normal.

What our review checks

Upload your employment contract and get a plain-English report, written for you as the employee, usually about 5 minutes after you pay. It:

• finds the probation clause and explains its length, any extension right and what changes after it
• compares notice during and after probation with the National Employment Standards minimum, both ways
• flags leave, pay or super terms that give less than the National Employment Standards or the likely award
• explains when unfair dismissal protection starts for your employer’s size
• flags repayment and deduction clauses that bite if you leave early
• checks restraint, confidentiality and intellectual property terms that follow you out the door
• lists the changes to ask for before you sign

The report explains what the contract says and what the law provides. It is not legal advice and does not tell you a clause is void or enforceable. You decide whether to sign.

Get my employment contract reviewed – $49

Questions people ask

How long is a probation period in Australia?

No law sets the length. The Fair Work Ombudsman says the employer usually decides and it often ranges from 3 to 6 months. Your contract states the length that applies to you.

Do I have fewer rights on probation?

No. While on probation you get the same entitlements as an employee who is not on probation, including the National Employment Standards. Your contract cannot give you less than those minimums or your award.

Can I take annual leave or sick leave during probation?

Yes, if you are full-time or part-time. The Fair Work Ombudsman says employees on probation accrue and can access paid leave such as annual leave and sick leave. Casuals do not get paid annual or personal leave.

Can I be fired during probation without notice?

Not if you are entitled to notice under the National Employment Standards. Ending employment during probation still requires notice, or pay instead of notice, based on your length of service: at least 1 week with 1 year or less of service. Casuals and employees dismissed for serious misconduct are exceptions.

Can I claim unfair dismissal during probation?

Only after the minimum employment period: 6 months, or 12 months if the employer has fewer than 15 employees. The probation label does not change that period. Other conditions apply, and you must apply within 21 days of the dismissal.

Can my employer extend my probation?

That depends on your contract. Check whether it allows an extension, for how long and with what notice. An extension does not change the minimum employment period for unfair dismissal or reduce your entitlements.

How much notice do I give if I quit during probation?

Whatever your award, enterprise agreement or contract requires. Casuals do not have to give notice. If you are award free and the contract says nothing, you might need to give reasonable notice.

Do I get paid out my annual leave if I fail probation?

Yes. The Fair Work Ombudsman says an employee who does not pass probation is still entitled to notice and to have unused accumulated annual leave paid out.

Can I be paid less during probation?

Not less than the award rate for your role, unless you are a high income employee. A contract can set a higher rate after probation, but the probation rate must still meet the minimum.

What should I check in a probation clause before signing?

Check the length, any right to extend, the notice each side must give, whether leave or pay is reduced during probation, and any repayment if you leave early. Ask for changes before you sign.

Is the employment contract review legal advice?

No. It is a plain-English report that explains what your contract says, what the law provides and what to ask to change. Claim Done is not a law firm. For a high-stakes role, consider legal advice as well.

Related guides

• Should I sign this employment contract?
• Notice periods in employment contracts
• Can I work for a competitor? What a restraint clause can and can’t stop
• Employer not paying out your notice period?

Claim Done is not a law firm and does not give legal advice; this page is general information about Australian law for employees in the national workplace relations system as at 9 November 2026. Your award, enterprise agreement and contract can give you more than the minimums described here. Whether a dismissal was unfair is for the Fair Work Commission to decide.

Sources (checked 9 November 2026)

• Fair Work Act 2009 (Cth), Compilation No. 73 (ss 15A, 23, 44, 45, 47, 61, 87, 96, 117, 123, 325, 326, 366, 382, 383, 394)
• Superannuation Guarantee (Administration) Act 1992 (Cth) (s 17A)
• Fair Work Ombudsman: probation
• Fair Work Ombudsman: dismissal and notice
• Fair Work Ombudsman: who doesn’t get notice
• Fair Work Ombudsman: resignation
• Fair Work Ombudsman: unfair dismissal
• Fair Work Ombudsman: help with termination
• Fair Work Ombudsman: about employment contracts
• Fair Work Ombudsman: fixed term contract employees (high income threshold)