Denying employees on probation their full range of workplace rights and entitlements can have serious financial and legal consequences for you and your business, as demonstrated in a recent FWC case that shows what can happen if you mistreat  your probationary employees to save money, but break the law in the process.

When hiring a new employee, placing them on a probationary period is often a good idea with many benefits. This period of time can help the new employee adjust to a new workplace culture and can allow you to assess how well they fit in to their new environment, and how much they contribute to the productivity and atmosphere of the workplace. Being on probation; however, does not mean that they can be treated as anything other than a fully-fledged employee, with the same entitlements as even the longest serving member of staff.

Not abiding by these rules and denying probationary employees equal legal treatment can have serious repercussions, as Arenco Holdings Pty Ltd discovered in a recent FWC case that examined the unlawful dismissal of a part time employee one day before her probationary period ended. This case not only demonstrates the importance of abiding by all sections of employment law, but also the use of proper employee management and communication.

Ms Myers began working part-time at OM Yoga Studios as a fitness instructor and administrative assistant on a three-month probation in April of 2018. In preparation of her probationary period coming to a close, and the studio taking on more members, Ms Myers was asked by a human resources advisor to construct her ideal teaching roster and provide it to them the next day. Ms Myers decided to consult the Fitness Award to make an informed decision about the number of hours and rate of pay for which she would be working; however, she instead became concerned as her current rate and work entitlements at OM did not match those described in the award. Ms Myers decided to raise these issues with her supervisor over text and wanted to discuss them before submitting her new roster. She did not receive a reply, but instead arrived at work for her normal shift and was told that her employment at the studio had been terminated but could continue as an independent contractor if she pleased. When she protested, Ms Myers was told by the supervisor that “because you have been employed one day less than three months and are still on probation, OM Yoga can do whatever it wants”.

During the trial, the employer suggested that Ms Myers was a poor employee who lacked a work ethic and had numerous performance issues which she had made no effort to address or improve on, which resulted in her termination. The Court did not accept this argument on the basis that there was no evidence suggesting that this statement was true. In fact, there was a multitude of Facebook and Text messages contradicting this argument and instead described Ms Myers as “very hardworking and very efficient”.

The FCC concluded that Ms Myers’ termination constituted adverse action taken by the employer as a result of her attempting to exercise and enforce a workplace right, which is a clear violation of section 340 of the Fair Work Act (2009). Ms Myers is entitled to compensation as a result of financial loss and hurt and distress, and the respondents, in the form of the employer (Arenco), the supervisor, and the HR advisor are liable to further penalties. This goes to show the importance of equal treatment of probationary staff in the workplace, as well as the importance of proper record keeping in the case of underperforming employees and following all aspects of payment awards and employment law.