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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 43707
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Thanks, We are a small business (under 15 employees). We

Customer Question

Thanks Deborah, We are a small business (under 15 employees). We have an employee that finalises her 6 month probationary period this coming Friday. We would like to extend her probationary period for an additional 3 months, as we are not certain she is the right fit. We are not sure how to write this in a letter that is legally appropriate and also clear on reasons why. We were hoping to get some one off help with this. Or do we need to do a whole contract again? Its a simple role - receptionist. Our goal is all goes well in 3 months time and she can become permanent but there have been a few hiccups hence our hesitation in particular regarding being the right fit. There is no clause in her original contract to say we might extend the contract. We have advised her we may extend the probationary period for 3 months, We just want to ensure we do it correctly, Thanks Please advise.
JA: What state are you in? It matters because laws vary by location. Has anything been filed or reported?
Customer: New South Wales - less than 15 employees. Original employment contact states 6 months probation (NO mention of extension).
JA: Anything else you want the lawyer to know before I connect you?
Customer: I think that is probably a good overview. Our goal is to keep her on, but we are a bit hesitant to confirm permanency at this point so hoping to extend for 3 months to be sure. thank you
Submitted: 5 months ago.
Category: Australia Law
Expert:  Leon replied 5 months ago.

My name is ***** ***** I am a NSW Solicitor. I will do my best to assist you with your question.

Customer: replied 5 months ago.
Great thank you.
Expert:  Leon replied 5 months ago.

Good Evening.

The period an employee must be with you is 12 months under the Act, before the right to sue for unfair dismissal because you have less than 15 employees arises after 12 months.

You do not need to stipulate there is an extension in time. You have have a meeting with her to tell her that you need more time to assess her performance and that you will re-assess her in 3 months.

But you have to tell her. Even if you were going to keep her after the 6 months you still have to have a meeting with her.

I hope this makes sense and is of assistance.

Customer: replied 5 months ago.
Great thanks so does that fit with the NSW fair work laws etc?
And do we need to get her to sign something/do we need to put it in writing?
And can we say its to be sure she is the right fit for the workplace or no?
Customer: replied 5 months ago.
Actually I am not certain your answer answered my question.
She is just on the 6 month probationary mark - we want to extend this for another 3 months (so this means we will confirm at the end of 12 months) even though it was not stipulated we may do this in her original contact. Can we do this and some of the information I read says it must be stipulated originally in the contract. Also do we put it in writing?
Customer: replied 5 months ago.
sorry it means we will confirm her employment at the end of 9 months instead of the originally planned 6 months. Is that allowed?
Expert:  Leon replied 5 months ago.

It is australia wide.

All employment laws apart for government employees are covered by fair work.

You can have her sign that she acknowledges what has been discussed.

You should also be working with her to improve her work and give her an idea about what is going wrong.

Here is some information.

https://www.fairwork.gov.au/ending-employment/unfair-dismissal

Yes it is allowed.

Here is the small business dismissal code that you should read to make sure you do everything right even though she cannot sue because any termination will be less than 12 months.

This is important in any dealings with your employees.

I hope this makes sense and is of assistance. if there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Customer: replied 5 months ago.
It was more about a couple of behavioural things that haven't gone quite right....does this still apply?
Expert:  Leon replied 5 months ago.

Yes if you are not happy with her behaviour and it is affecting her work and also that of others she has to be told. You cannot keep silent about it.

It is in your best interests to tell them and work with them to solve it. The code is very detailed about how you deal with things.

Customer: replied 5 months ago.
Thanks yes we have told her. She understands and we have advised we will most likely extend the probationary period. We do want to have her sign a document to have on file for her and for us. Can you please briefly note for me how I should word the document please?
Customer: replied 5 months ago.
Hello Leon - did you see my last email can you draft a letter for me please?
Expert:  Leon replied 5 months ago.

Good Evening.

You simply say that the 6 months probation period in your agreement dates XXXX is being extended by agreement to 9 months and expires now on XXXXX