Dismissal during the Minimum Employment Period

One of the most common questions our Workplace Relations Advisors are asked is whether an employer is required to give a reason for the dismissal of an employee if they’re within their Minimum Employment Period.

The Minimum Employment Period – or MEP – is commonly referred to as the “probationary period”, though they aren’t strictly the same thing.

The MEP is the statutory period during which an employee is not able to bring a claim for unfair dismissal against their employer and it’s length depends on the number of employees employed by the business. For a business with 14 or fewer employees, the MEP is 12 months. Where a business has 15 or more employees, it’s six months.

While employers are not obliged to provide a reason for dismissal, it’s often advisable to do so. If you don’t, it may provoke the employee to seek alternative remedies concerning their termination.

Consider a situation where an employer doesn’t provide a reason for terminating an employee, but the employee thinks there is an ulterior motive. The employee may feel this way because, not long before the termination, they questioned their right to be paid a higher car allowance. They’ve since formed the opinion that this enquiry is the reason for their termination.

In such a case, the employee would not be able to bring an unfair dismissal claim against the employer if they were still within the MEP. However, the employee could commence an action under the General Protections provisions of the Fair Work Act 2009 on the basis that there was a belief that the termination was motivated for an unlawful reason (in this case, the enquiry about the right to be paid a higher car allowance).

The MEP is no protection against a General Protections claim, which partly explains why this type of claim is rapidly growing in popularity. Importantly, there’s a reverse onus of proof associated with such claims, which means an employer needs to prove the dismissal wasn’t because of the reason stated by the employee.

This, in part, explains why REEF often advises real estate employers to divulge to the employee the reason for terminating their employment within the MEP and to also keep records of any performance management actions taken during the MEP.

The bottom line

While employers are not obliged to provide a reason for dismissal of an employee within their Minimum Employment Period, it is often advisable to do so. Otherwise, it may provoke an employee to commence an alternative action in relation to the dismissal.