It is important for anyone in this situation to know they do have some rights under the general protection provisions of the Fair Work Act. For instance, if you have taken some sick leave while on probation, you cannot be terminated for that reason.
Poor performance and conduct are the most common reasons for dismissal during a probation period. Provide the opportunity for the employee to respond to your feedback and decision. Let the employee know whether they can work through the notice period or receive payment in lieu.
Actually you should not call in at all, this is considered a probation period to train and learning your job duties. If sick, you will need to get something from doctor office showing you were there. Only in case of a life or death situation should you call in. You work in a point system which is pretty lenient.
Most employers use a 3-6 month period of probation to see if the employee works well within the companies structure and with the other employees. This is perfectly acceptable and still allows the employer the right to terminate an employee without concern for an unfair dismissal claim.
In Australia, the term 'sick leave abuse' is not defined. However, if an employee is claiming sick leave with the intention of using their sick leave to take time off work, that may be considered 'abusing' the system. If an employer is not provided with evidence when requested, generally the employee will be not paid.
Protection from dismissal for taking sick leave
Employees who can provide evidence of their illness or injury are protected from being dismissed because of their absence if they're: away for less than 3 consecutive months or less than 3 months in total over the last 12 months, or. still using their paid sick leave.
Can you be sacked when you're on workers compensation or stress leave? The NSW Workers Compensation Act 1987, Part 8, essentially prevents employers from terminating an employee who has sustained a work injury of any kind, purely because they're unfit to resume work within the first six months.
The only time warnings are required is in performance-based dismissals in unfair dismissal proceedings. “If you are dismissed for poor performance and you never received a warning that you were underperforming, then it's likely your dismissal will be deemed to be unfair,” Jewell says.
In cases where misconduct has not occurred, the standard notice period (whether you have a contract or not) is 1 to 2 weeks during probation. However, the amount of notice you have to give is also dependant on the award you're classified under. Similarly, it also comes under the industry that you work in.
A 90-day probationary period for new hires is a defined period of time during which a new employee receives added management and education to learn a new job.
If you exceed your sick or stress leave without wider discussion, you could face a range of disciplinary actions, from warnings to suspension to the termination of your contract. If you are no longer fit to carry out your role, they are well within the rights to bring your employment to a close.
If you've had a lot of time off work because of sickness, it might be reasonable for your employer to dismiss you because you're no longer able to do your job. If you've been working for your employer for 2 years or more, they have to follow the correct disciplinary process before they dismiss you.
Right off the bat, tell the employee that you're firing them and why, without using a lot of extra words or small talk. Make it clear that the working relationship is over, explain next steps, and provide the necessary paperwork. The worst thing you can do is leave the person wondering if they still have a job or not.
Length of probation
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.
Notice periods are usually outlined in employment contracts and national regulations. However, it's usually unclear whether there's an obligation to provide a notice period during a probation period. If you're wondering whether you can resign from your job during your probation period, the short answer is yes.
If you're unsure, a good rule to follow is to halve what their notice period would be once their probationary period is over. For example, if their employment contract states their notice period is four weeks, you should make their probationary notice two weeks.
Write to the employee to invite them to a probationary review meeting and tell them that you are considering terminating their contract due to issues with their performance. Mention the employee's right to bring a colleague or trade union representative to the meeting. Provide evidence to support your concerns.
“The 'three warnings rule' is one of the most common misconceptions in employment law – it simply does not exist,” he says. “The reason that some organisations use this approach is to avoid risk in unfair dismissal claims, but unfair dismissal matters don't require multiple warnings.”
The Fair Work Act does not set out any minimum amount of warnings that must be issued in order for a dismissal to be considered fair. The number of warnings given to an employee (if there is more than one) will depend on the nature of the conduct or under-performance.
There is no definitive answer to this question as it will depend on the severity of the employee's behaviour or conduct and how many times they have been warned before. However, if the offences are not too severe, you should usually aim to give your employees at least two written warnings before dismissing them.
Normally, 12 sick days might not ring any alarm bells. An employee could legitimately require 12 days off due to severe illness or surgery. But a sick day every month just before a weekend does suggest a pattern of undesirable behaviour.
There is no maximum amount of time that you can be on long term sickness for. From here, your employer can take a number of steps to see whether they can support you back into employment and whether you will realistically ever be able to come back to work.
If your stress is impacting your health, you may want to resign immediately so you can focus on getting help. Otherwise, giving notice can help preserve your professional reputation. Assess your current situation and decide which option is best for you, then clearly state your last day in your resignation letter.