Can a worker be dismissed with the probationary period without fear of reprisal?

For a probationary period to be legitimate, it needs to be determined before the employee starts employment, and the probationary period should be no longer than six months.  Difficulties can arise where there is confusion over whether a probationary period was mentioned during an interview, or where an employer seeks to extend the probationary period beyond three months by reason, for example, of the employee's absence from work.  Confirmation of the period of probation in a letter of offer is sufficient proof.  The ability to extend the probationary period due to an employee's absence needs to be specified in the letter of offer.

A probationary period does not protect an employer who dismisses an employee unlawfully, for example, for reasons that are discriminatory (such as race, colour, sexual preference, age, disability, religion, pregnancy, etc) or because of membership or non-membership of a trade union.

Employees should be careful to ensure that any letter of offer sets out the terms and conditions of a probationary period so that there are no misunderstandings.  Probationary periods are normal and provide an opportunity for the employee to also decide that they do not wish to continue in the new position with limited notice being required.

What happens when your employee fails to come to work?

Unless an employee is absent with a reasonable excuse, for example, illness, then it may be that they have abandoned their employment.  This arises when the absence is for an unreasonable period of time without having communicated to the employer any reason for the absence. 

You should attempt to contact the employee either personally or by registered mail to the employee's last know address and enquire as to the reason for the absence.  If no reply is received or if the excuse for the absence is unsatisfactory ("I don't feel like coming to work"), the employer should again contact the employee and advise that the employment has been terminated.  Where possible, termination should occur at a face to face meeting if the employee can come in.

Alternatively, you should contact the employee and advise that unless (s)he returns to normal duty or furnishes an acceptable reason for the absence together with the estimated duration of absence, within a specified time, the employee will be regarded as having terminated the employment without notice on the date of last attendance for duty.

As it is unlawful to terminate an employee on the grounds of illness or injury, the employer needs to investigate the matter promptly and properly before making any decision to terminate an employee who is temporarily (or otherwise) absent.  It is also unlawful for an employer to terminate an employee who is temporarily absent from work due to their involvement with emergency services such as SES or the Volunteer Fire Service.

Some awards define abandonment of employment, eg absence from work for a continuous period exceeding three working days without consent of, and no notification to, the employer.  A further 14 day period of absence without satisfying the employer there is a reasonable cause would result in the employee being deemed to have abandoned his/her employment.  Reference should be made to the relevant award to determine this provision.

Source: Australian Veterinary Journal January/February 08