One Complaint too many? – the sacking of an employee during a probationary period that went horribly wrong

The recent decision of Anderson –v- BNP Paribas Securities Services (“BNP”) [2015] FCCA 2231 is a timely and cautionary warning to employers who seek to terminate an employee during the probationary period.

Ordinarily, the minimum employment period applies regardless of any probationary period which may be stipulated in the employee’s contract of employment. Under the Fair Work Act 2009 (the Act), an employee is protected from unfair dismissal if they have been employed for at least the “minimum employment period”. The minimum employment period is one (1) year for employers with 14 or less employees or six (6) months for employers with more.

In this case, Anderson had commenced employment, but after two months, made a complaint about his supervisor to Human Resources. At the same time, a review of Mr Anderson’s progress took place, and his manager offered to extend his probation.

At a subsequent review meeting, Anderson again raised his complaint with respect to his manager’s behaviour to Human Resources. Later that day, the offer to extend Mr Anderson’s probation was withdrawn and the next day Mr Anderson was dismissed.

Mr Anderson made an application against BNP for allegedly breaching his workplace right to make a complaint, even though it was within the probationary period.

The Court found that the complaints made by Mr Anderson, though not formally in writing, had formed part of the decision behind his termination and therefore a workplace right had been breached.

The decision in is this case may not have come about had BNP not offered the extension to Mr Anderson’s probation only to withdraw it again when the second complaint was made by him.

This case is a good indicator of the consideration made by the Court of an employee’s rights under the general protections regime within the minimum employment period, irrespective of the employer’s probation period for the employee.

Employer Tips:

The decision provides important reminders to Employers to ensure that:

• complaints and inquiries made by employees are appropriately considered and addressed including ensuring due process is followed;
• performance concerns are raised with employees at an early stage during the minimum employment period;
• the general protections regime applies irrespective of how long your probation period with the employee is; and
• decisions to terminate employees, even during the minimum employment period are well considered and not rushed.

If you would like further advice on this decision and how it may apply to your business, please contact Adam Foster (Associate, Business Practice Group) on 03 9629 9629.