Probation Outcome Letter | s.383 Fair Work Act 2009

A probation outcome letter is a formal notice from employer to employee recording the result of the probation review against the criteria set at the start of employment. The Fair Work Act 2009 (Cth) never uses the word "probation". It is a contractual mechanism, usually found in the employment contract or letter of offer, that gives both parties three to six months to test the fit. Some modern awards and enterprise agreements add their own probation rules, so the instrument covering the role has to be checked before anything is drafted. If your contract is silent on probation, start with a Fair Work compliant employment contract with a probation clause before relying on any outcome letter.

A probation review form is an internal assessment that records ratings and comments but changes nothing contractually. A general termination letter covers any dismissal, whereas the probation outcome letter ties the decision to a specific contractual trial and the standards announced at the start. A probation extension letter is a variation of the contract, and it only works if the probation clause allows an extension or the employee agrees to it in writing.

The starting point is section 382 of the Fair Work Act 2009 (Cth), which protects an employee from unfair dismissal only once they have completed the minimum employment period and are covered by an award or agreement or earn below the high income threshold. Section 383 sets that period at six months, or twelve months for a small business employer. Under section 23, a small business employer has fewer than 15 employees at the relevant time, counting associated entities and regular casuals. The period runs up to the earlier of two moments: when notice of dismissal is given, or immediately before the dismissal. Serving written notice inside the period freezes the clock, even if the notice period itself ends after it. Extending probation by contract has no effect on this deadline, which is why the date on the probation outcome letter matters.

Probation does not displace the National Employment Standards. Section 117 requires written notice of the day of termination and at least one week's notice, or payment in lieu, for an employee with up to one year of continuous service, and the exclusions in section 123 do not cover probationary employees. The general protections in Part 3-1 apply from the first day. Where an employee alleges that adverse action under section 340 was taken for a prohibited reason, section 361 presumes the allegation is true unless the employer proves otherwise. Claims must be lodged within 21 days of the dismissal taking effect, under section 366 for general protections and section 394 for unfair dismissal. Once a small business employee passes twelve months, a dismissal that complies with the Small Business Fair Dismissal Code is not unfair under section 385. Employment records, including how and by whom employment ended, must be kept for seven years under section 535 and the Fair Work Regulations 2009. The Fair Work Ombudsman guidance on probation periods and notice during probation confirms that probationary employees keep their full NES entitlements, including notice and payout of unused annual leave.

The most frequent use is confirming the appointment. The Fair Work Ombudsman recommends giving that confirmation before the probation period ends, and a short probation outcome letter removes any doubt about the employee's status. The second scenario is the extension, used when performance is mixed or the manager needs more evidence. It rarely buys the protection employers expect: a national system employer with 20 staff who extends a five month probation by three months faces an employee eligible to claim unfair dismissal from month six. The third scenario is ending the employment, which calls for correct notice and a reason that will survive a general protections claim.

Two edge cases recur. Taking paid personal leave is the exercise of a workplace right under section 341, and dismissal because of a temporary absence for illness is prohibited by section 352 and regulation 3.01 of the Fair Work Regulations 2009. An extension decided because of the absence can itself be adverse action, so the letter should rest on the assessment time genuinely missed and the criteria still untested. Second, a casual converted to permanent employment may already have served the minimum period, because casual service counts under section 384 when it was regular and systematic with a reasonable expectation of continuing work. The same arithmetic applies when someone moves from a fixed-term employment contract under s.333E into an ongoing role with the same employer.

• The outcome statement states plainly whether probation is confirmed, extended or unsuccessful, and identifies the contractual clause under which the decision is made. Wording such as "we will continue to monitor your progress" fuels most disputes about whether probation ended.
• The probation timeline records the commencement date, the original probation end date and the date the letter is given. These three dates let anyone reading the file later check the decision against the section 383 minimum employment period.
• The extension terms, where relevant, set a new end date, the performance criteria still outstanding, the support offered and the review meeting date. The clause includes the employee's written acceptance, because an extension without contractual authority or consent has no legal effect.
• The notice of termination clause states the last day of employment, the notice period or payment in lieu under section 117, and the employee's final pay entitlements. It is drafted to sit alongside the termination letter pack with s.117 notice calculations if you need a separate dismissal notice.
• The reasons and process paragraph summarises the performance or suitability concerns, the feedback given during probation and the opportunity the employee had to respond.
• The final entitlements and return of property clause covers accrued annual leave paid out under section 90(2), return of equipment and the ongoing confidentiality obligations from the employment contract.

New South Wales private sector employers sit in the national system, so the Fair Work rules above apply. The NSW public sector and local government follow the Industrial Relations Act 1996 (NSW). Under section 83 and clause 6 of the Industrial Relations (General) Regulation 2020, an employee on probation cannot claim unfair dismissal if the probation was determined in advance and is three months or less, or longer but reasonable. Public servants may face up to twelve months under rule 5 of the Government Sector Employment (General) Rules 2014, a maximum the Industrial Relations Commission accepted in Simon v Industrial Relations Secretary [2025] NSWIRComm 1027.

Queensland private employers are also national system employers, while state and local government employees fall under the Industrial Relations Act 2016 (Qld). Section 315 sets a statutory probationary period of three months unless the parties agree in writing on a shorter period or none at all. During that period an unfair dismissal claim is unavailable, though general protections claims remain open. The Queensland Industrial Relations Commission treated a six month probation as a reasonable extension in Ncube v Cairns Regional Council [2022] QIRC 75.

Western Australia needs separate treatment. Sole traders, partnerships and some trusts remain in the state system under the Industrial Relations Act 1979 (WA), which has no minimum employment period at all. A state system employee can claim unfair dismissal from the first week of employment. Section 23A requires the Western Australian Industrial Relations Commission to consider whether the employee was on probation and employed for less than three months. Claims must reach the Commission within 28 days, and the unlawful termination provisions of the Fair Work Act still apply.

Victoria referred its industrial relations powers to the Commonwealth, so private employers and most public sector employers apply the Fair Work rules directly. The added layer is the Equal Opportunity Act 2010 (Vic), which prohibits discrimination in dismissal under section 18 and opens a complaint pathway through the Victorian Equal Opportunity and Human Rights Commission. A probation outcome letter ending employment in Victoria should therefore rest on documented performance facts only.

South Australia and Tasmania keep state systems for their own public sectors, under the Fair Work Act 1994 (SA) and the Industrial Relations Act 1984 (Tas), while private employers there follow the Commonwealth rules. In the ACT and the Northern Territory, every employer is a national system employer.

You start by choosing the outcome: confirmation, extension or termination. The probation outcome letter then shows only the matching clauses, so a confirmation letter stays short and a termination letter carries the notice and entitlements sections. You then enter the commencement date, the probation length stated in the contract and whether the business has fewer than 15 employees, which tells you whether the minimum employment period is six or twelve months. For an extension, you describe the outstanding performance criteria in plain language, set a review date and leave room for the employee's signed acceptance. For a termination, you choose between working the notice period and payment in lieu, applying at least the section 117 minimum for the length of service.

The reasons belong in two or three factual sentences that link back to the criteria announced at the start of probation. Before signing, check that the probation outcome letter matches the contract wording and any probation rules in the applicable award or enterprise agreement. If you are ending the employment, confirm that the date of the letter falls inside the minimum employment period.

The single most expensive mistake is missing the deadline. A five month probation extended "by a few weeks" can carry the employee straight past six months, and from that day the dismissal must be fair in the full section 387 sense: valid reason, notification, an opportunity to respond and no unreasonable refusal of a support person. The second mistake is relying on probation as a reason in itself. "You did not pass probation" explains nothing; the probation outcome letter must point to concrete performance or conduct facts.

The third error is cutting notice to zero. Many contracts provide shorter notice during probation, which is fine, but nothing can go below the section 117 minimum unless the dismissal is for serious misconduct. Fourth, some employers extend probation unilaterally, without a contractual right or the employee's signed agreement, and the extension simply has no legal effect. The fifth mistake is a reason that brushes against a protected attribute, a period of sick leave or a recent workplace complaint, which hands the employee a general protections claim with the onus of proof reversed. Remember too that probation only exists in employment: a "trial" contractor who works like an employee is likely to be one under section 15AA, and genuine engagements belong in an independent contractor agreement drafted to s.15AA.