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Last updated: July 2010
Probation
The purpose of imposing probation as a condition of engagement is to assess the employee’s performance and behaviour during the probationary period.
Investing time and resources in the assessment of performance during the period of probation of ongoing employees and longer-term non-ongoing employees can deliver benefits for the agency, whether the person’s employment is terminated or continued. It may also be useful to impose a probation period on shorter non-ongoing engagements depending on the length and nature of the engagement.
However, there is no requirement to impose a period of probation as a condition of engagement. An agency head is free to engage an employee without imposing the condition where that is considered appropriate.
Probation can only be applied when a person is engaged as an APS employee. There is no equivalent provision that applies when an employee who has already completed their probationary period is either promoted or moved at level to another job either within an agency or to another APS agency.
Legislative provisions
Under section 22 of the Public Service Act 1999 (PS Act), APS agency heads are able to engage persons as either ongoing or non-ongoing APS employees. Subsection 22(6) of the PS Act provides that an agency head may impose conditions, such as probation, on such engagements.
It should be noted that each condition of engagement that is imposed is separate and other conditions of engagement may remain in place even after the period of probation is completed.
For example, it would be possible for an employee to have successfully completed their period of probation, but for their engagement to remain subject to other specific conditions such as citizenship or a medical assessment.
Section 29 of the PS Act provides that an agency head may, by notice in writing, terminate the employment of an APS employee. For an ongoing APS employee, the notice of termination must specify the ground or grounds that are relied on for the termination. The possible grounds for termination are set out in subsection 29(3) of the PS Act, and include failure to meet a condition imposed under subsection 22(6) of the PS Act.
Industrial instruments
An agency head must comply with any provisions of the agency’s enterprise/collective agreement or an individual industrial or other instrument setting terms and conditions of employment which set out the rights and entitlements of a probationary employee.
Agencies will need to give consideration, in drafting these instruments, to whether probationers should be specifically excluded from particular parts of the instruments. For example, it is standard practice for probationers to be excluded from coverage by the redeployment, reduction and retrenchment provisions of an agency agreement. Agencies should also give consideration to how other procedures set out in industrial instruments (such as inefficiency) are to apply to probationers. In addition, similar considerations might apply when agencies are establishing procedures under subsection 15(3) of the PS Act for determining whether an employee has breached the APS Code of Conduct.
Failure to do this may nullify the whole basis for probationary engagement because the employee may be subject to the full process specified for other employees of the agency before their employment can be terminated.
The probationary period
The length of the probation period is a matter for agencies to determine—there is no set minimum or maximum period.
It has been common practice in the APS in recent years to set an initial three month probationary period with the possibility that this period be extended for a further three months (i.e. up to a total period of six months). However, there may be circumstances where agencies consider that a longer period of probation should be imposed (for example where the nature of a project makes it difficult to accurately judge the quality of work until milestones are achieved).
In determining the length of the probationary period, agencies may decide to take into account the requirements of the Fair Work Act 2009 relating to unfair dismissal. Under that Act, employees will only have access to the unfair dismissal protections where they have served a minimum employment period with their employer. The minimum employment period is defined as six months ending at the earlier of the time when the person is given notice of dismissal or immediately before dismissal. Note that for small business employers the minimum employment period is 1 year but this will not apply in the APS irrespective of the size of a particular agency.
For the probationary system to work effectively, prior to their engagement a prospective employee should be advised of:
- their status as a probationary employee
- the duration (or maximum duration) of their period of probation
- whether that period can be extended (and the maximum duration of the period of probation) and under what circumstances
- whether the period of probation is to continue if the employee is moved to another job during the probationary period
- what their probationary performance will be measured against and the mechanism by which it will be measured.
Upon commencement, the employee should then be advised of:
- their work responsibilities (both their immediate duties and any additional requirements in respect of ability to perform other jobs and/or to interact appropriately with other employees and customers)
- the standards of work expected of them
- the standard of conduct expected of them.
Much of the probationary process will be focused on an assessment of the employee’s performance against the set of duties for the job they are performing. It may also relate to the broader requirement of employees at that level in an agency or specific tasks set out in the agency’s performance management arrangements. The requirements of the APS Code of Conduct will also be relevant.
Probation and the APS Values and Code of Conduct
The APS Values and the Code of Conduct in sections 10 and 13 of the PS Act are important to the way in which an employee is introduced to the APS, including during their period of probation.
A probationer should be made aware of their obligations to uphold the APS Values and comply with the Code of Conduct, and supervisors should model commitment to the Values in their dealings with the probationer. The period of probation should be used to ensure that the employee is aware of, and able to comply with, the Code of Conduct as an essential element underpinning their engagement in the APS. Probationers should be advised that failing to comply with the Code at any time during their career may result in sanctions being imposed.
Where it is suspected that a probationer may have breached the Code of Conduct, the agency head can take action in accordance with agency procedures established under subsection 15(3) of the PS Act to investigate the matter immediately. The agency head may impose a sanction on a probationer where the employee is found to have breached the Code. If, as a result of an investigation, it is established that a serious breach of the Code has been committed by the employee, the agency head can terminate the engagement immediately, without waiting for the period of probation to run its normal course. As noted above, in establishing relevant Code of Conduct procedures under subsection 15(3) of the PS Act, agencies may need to consider whether they should provide for different misconduct provisions to apply to employees who are still serving a period of probation.
Taken together with the requirements of the Administrative Decisions (Judicial Review) Act 1977 and the Privacy Act 1988, the APS Values require agencies to ensure that probationers:
- are treated fairly and courteously
- receive appropriate feedback
- are given a reasonable opportunity to correct any perceived problems in their work performance or conduct
- are given an opportunity to state their case before a decision which is likely to be unfavourable to them is made
- are judged by a decision maker who is (and who appears to be) unbiased, and
- are afforded the appropriate level of personal privacy.
Probationary assessment
There are no legislative requirements governing how an employee’s work performance is to be monitored and assessed during the probationary period.
Agencies will need to develop appropriate procedures that take into account the APS Values and other legislative requirements as well as any operational requirements of their agency. Generally, such procedures would involve ongoing feedback and one or two written reports being submitted, by the supervisor, to the agency head or the delegate.
Reports on an employee’s work performance should generally include information in relation to both the work responsibilities assigned to the employee and the standard to which the employee is performing these duties. Where an employee is either not performing their work responsibilities, or is not performing them to a satisfactory standard, it is good practice to raise this with the employee as soon as it becomes apparent so that the probation report is essentially a reiteration of these discussions. The report should include a record of how and when the concerns were drawn to the employee’s attention, and how they were to be addressed.
Where there is concern about an employee’s attendance or behaviour, this should be brought to their attention by their supervisor as soon as possible. Preferably reference to such a concern in the probation report should be no more than a reiteration of what has already been discussed with the employee, and include a record of any agreement to rectify or change the relevant behaviour.
The employee should be made fully aware of any report submitted as part of the probationary process. Employees should generally be asked to read and sign the probation report and be given the opportunity to provide any comments on its contents before it is forwarded to the relevant delegate.
The monitoring/reporting mechanism adopted within an agency should be sufficiently flexible and comprehensive to:
- allow the person providing the report to discuss any perceived shortcomings with the employee
- provide the employee with a reasonable opportunity to correct any perceived failings
- enable a sound decision to be reached in respect of the employee’s suitability before the end of the period of probation and to allow retention or termination action to be finalised before the expiration of the period of probation.
End of probation—where the employee is to remain in employment
Where an employee has successfully completed their period of probation it is good practice to advise the employee that their employment is no longer subject to probation. There is no longer any formal requirement for an employee on probation to be ‘confirmed’ following the successful completion of their period of probation.
An employee who is subject to a number of conditions of engagement should be reminded that they must still satisfy the other condition(s) imposed under subsection 22(6) and that failure to do so could still lead to their employment being terminated. For example, a person may successfully complete a period of probation but be terminated because they have failed to successfully complete a cadetship program. As noted above, each condition of engagement needs to be imposed and addressed separately.
End of probation—where employment is to be terminated
Termination of employment of a probationer may be appropriate where the employee has not been able to:
- fully perform all of their assigned work responsibilities
- perform their work responsibilities to a satisfactory standard
- maintain an appropriate standard of conduct or attendance.
Before terminating the employment of an employee on probation, is important first to have:
- followed any established agency procedures and legal requirements that apply to probationers
- given the employee reasonable opportunity to achieve an appropriate standard in respect of the shortcoming
- given the employee reasonable opportunity to show why termination should not occur
- notified the employee of the intention to terminate
- effected the termination before the expiration of the period of probation.
It is also important to be, and to be seen to be, free from bias.
It should be noted that an employee’s engagement cannot be terminated on the grounds of a failure to satisfy probationary conditions if the termination occurs after the period of probation has expired. A notice of termination is not effective until it is communicated to and received by the employee, despite the fact that the termination instrument may be signed and be expressed as taking effect from an earlier date.
Normal APS review of action processes do not apply to decisions relating to termination of employment. However, as noted above, the Fair Work Act contains provisions to protect employees from unfair dismissal, although these do not generally apply to employees who have not completed their minimum employment period (six months for APS agencies). The Fair Work Act also makes it unlawful for an employer to terminate an employee’s employment for certain reasons, including temporary absence from work because of illness or injury, trade union membership (or non-membership), race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (see section 772 of the Fair Work Act).
Movement or promotion during the period of probation
Given that the purpose of probation is to judge the person’s suitability for employment, it may be appropriate to wait until the probationary period has been satisfactorily completed before moving the employee to another job. Where it is decided to move a probationer, or where the probationer is successful in obtaining another job either within the agency or in another agency (including on promotion), any decision regarding the continuity or otherwise of the period of probation should be clearly conveyed to the employee as soon as possible.
Whether a period of probation may continue when an employee moves during their period of probation may be dependent upon whether the wording of the original notice is sufficiently flexible to allow for the possibility.
If an agency head decides that the full period of probation need not be served, they should advise the employee that the period of probation has been satisfactorily concluded.
Movement while on probation due to machinery of government changes
In circumstances where an administrative rearrangement under section 72 of the PS Act results in the movement of an employee from one APS agency to another, and the APS employee who is to be moved is still on probation, the period of probation will continue to apply to the employee’s employment in the gaining agency.
The agency head of the gaining agency will then be responsible for determining whether the period of probation has been successfully completed within the period that was originally notified to the employee. The agency head may, where appropriate, have regard to reports prepared in the employee’s original agency when making this decision. However, the gaining agency head is not able to extend the probationary period of an employee in these circumstances unless the employee was advised prior to their original engagement in the APS that the probation period could be extended.
Further information on machinery of government changes is available in the publication Implementing Machinery of Government Changes: A good practice guide which is available on the Commission’s website at http://www.apsc.gov.au/publications07/machineryofgovernment.htm.
Publications
Circulars and Advice
- Circular No 2007/2: The Privacy Act and employee information concerning Code of Conduct matters (as amended by 2008/3)
Legislation
- Public Service Act 1999 sections 22 and 29
