Worker fired during probationary period argues unfair dismissal

A worker recently filed a dismissal claim before the  Industrial Relations Commission of New South Wales, alleging that it was unfair for his employer to terminate him before the end of his probation period.

The worker, Tulshi Shrestha, argued that his termination was severe, unjust, and unreasonable for several reasons:

• There was no initial consultation.
• Accumulated work-related stressors were not discussed.
• Orientation and induction were lacking.
• No review or information regarding work performance concerns was provided.
• The dismissal lacked a proper procedure.
• He believes he was dismissed to mask management shortcomings, not due to his own performance.

Attached to his claim was a termination letter indicating his probationary employment status and the reasons for termination. The letter mentioned a six-month probationary period starting from August 14, 2023, and stated his employment would end on October 20, 2023, with two weeks' pay in lieu of notice and any outstanding leave entitlements.

The employer, in response to the unfair dismissal claim, asserted that the applicant began work on August 14, 2023, under a six-month probationary contract and was terminated within three months, falling within the probation period. It argued that the worker had no grounds for relief. It also said that the six-month probation period was reasonable.

Despite attempts at conciliation, the matter proceeded to a hearing regarding the employer's jurisdictional objections, particularly concerning the exclusion of the Commission's jurisdiction during the probationary period.

The worker argued that the six-month probation period was set in advance and, thus, cannot be overridden by the three-month period mentioned in the regulation.

Additionally, he argued that the dismissal, occurring just over two months into the six-month probation, was premature and unfair, considering the need for the full six months to assess performance.

The worker asserted that the Commission should consider the circumstances surrounding the dismissal to determine the reasonableness of the employer’s decision.

Was it unfair dismissal?

The Commission found that the worker “was employed as a senior employee.”

“He was unsupervised on a day-to-day basis, led a team of six engineering staff, not low level themselves, was required to hold a degree qualification in engineering, a serious qualification, had ultimate responsibility for engineering design sign offs and worked in an environment where project or tasks life cycles exceeded six months,” it added.

“Objectively given the nature of the job and in the circumstances of it being generally unsupervised, the six months probationary period was reasonable.”

It said the employer’s termination of his position was “reasonable” although he was “dismissed two months into a six-month period.”

“Largely, this is because it is quite possible to understand that while it might take up to six months to give an employee a chance to show that they are up to the full duties of a role, it is also possible for an employee to demonstrate earlier that they cannot perform the role properly,” it said.

Thus, the Commission consequently dismissed his application against the employer.