Employee claims unfair dismissal after 'probation extension'

The Fair Work Commission (FWC) recently dealt with the case of an employee who questioned his employer’s decision to extend his probation period, which led to his forced resignation.

The employer argued that it was empowered by the contract to extend the terms, and that it was the employee’s own decision to leave the company.

The employee was a site supervisor at the employer’s property development business. The latter is primarily a residential home builder.

His role involved managing the construction of new homes. He started work in June 2022 on a full-time basis and was subject to a six-month probationary period of employment.

In his letter of offer of employment, the employer was allowed to extend the probation period by three months, provided that the employee was given notice before the end of his initial probationary period.

The initial work location was in Port Melbourne, with the scope to work at any other location as directed. While the parties negotiated a remuneration package at the start, they agreed the employee would receive an $11,000 gross increase to the package on successful completion of the probation period.

Probation extended

On 21 December 2022, or the final day before the closedown over Christmas and before the employee’s probation period ended, the employer told the employee that it wanted to extend the probation period by three months.

It explained its reasons in an email that said: “The reason round the extension and discussion of your probation period is due to the fact of some further support and training we felt that was required within your performance.”

The employee said “he reluctantly agreed” because “he had no option” but did not accept the reasons for the extension. The employer sent him a confirmation letter about the extension on the same day.

A day after, the employee changed his mind and sent an email, saying he “did not wish to be subject to a probation period any longer than the initial six-month period,” and said, “he will be ‘finishing up’ with the employer in the new year, giving two weeks’ notice starting on 9 January 2023.”

HRD previously reported on what a new hire should achieve in their first month, emphasising that employers should ensure new employees understand a “company’s ethos, culture and approach.”

‘Unambigious’ email

The Fair Work Commission said the email from the employee was “unambiguous” since he clearly said, “he does not wish to continue to work on an extended period of probation and that he will finish up on completion of the two-week notice period.”

The commission also said that the employee was “aggrieved over the extension of the probation period, which he considered was unfair” since it “denied him an immediate $10,000 yearly pay rise.”

“While his grievance was evident, it did not alter the circumstances, that being that the agreed contract of employment allowed for the extension and the employer opted to implement the change within the terms of the contract,” the FWC said in its decision.

The employee “refused to accept the extension, and this led to his resignation. There is no evidence of a resignation in the heat of the moment or on any other basis for a constructive dismissal,” it added.

The employee argued that “instead of extending the probation period, the employer should have determined within the first six months employment whether he was suitable for the position and if not, it should have terminated his employment.”

However, the commission again stated that the employer had the power to extend it under the terms of their contract.

Ultimately, the commission ruled that the worker resigned on his own, and the employer’s decision was protected by the agreement.