Sometimes you might realise a job isn’t right for you during your probation period. However, resigning during probation isn’t always as simple as saying goodbye and being on your way.
If you resign from your job, you typically have to provide notice. Notice periods are usually outlined in employment contracts and national regulations. However, it’s usually unclear whether there’s an obligation to provide a notice period during a probation period.
If you’re wondering whether you can resign from your job during your probation period, the short answer is yes. However, this isn’t always the case. In this article, we’ll outline the different ways you can find what your notice period should be and which instances you need to provide notice so you can depart on good terms but also on fair and legal terms.
Read along!
Table of Contents
How does a probation period work?
Permanent part-time and full-time employees usually have a probationary period when commencing a new role. This often lasts between 3 and 6 months but can be shorter or longer. During this time, both the employer and employee have the chance to see if they’re the right fit for the role. Essentially, it’s a time when an employee is doing the job on a trial basis.
At the end of the probationary period, if the employer and employee are both happy with the arrangement, then the employee becomes permanent and can enjoy all the protections that come along with it.
If either an employer or employee decides that the arrangement isn’t working out, the employee can be terminated with little to no notice. Similarly, an employee can usually resign on the spot with little or no notice. However, if your probationary period is a term of your contract, it is likely that a short notice period (normally 1 to 2 weeks) will apply.
Types of employment
Often, the notice period you’re required to give will depend on the basis on which you are employed. For casual employees, typically, no notice period is required. This applies to both the employer and employee. This means that you can resign from a job without having to work any additional time afterwards. Conversely, an employer can terminate you without any notice or payment in lieu of notice. It’s for this reason that probation periods ordinarily don’t apply to employees employed on a casual basis.
Employees who work on a full or part-time basis can only be terminated without notice if a serious misconduct has occurred. The Fair Work Commission has outlined what satisfies the criteria for “misconduct” to avoid unfair dismissal. However, some common criteria include the following:
- Theft
- Fraud
- Intoxication at work
- Refusal to carry out lawful and reasonable instructions.
In cases where misconduct has not occurred, the standard notice period (whether you have a contract or not) is 1 to 2 weeks during probation. However, the amount of notice you have to give is also dependent on the award you’re classified under. Similarly, it also comes under the industry that you work in.
Check your Employment Contract
If you signed an employment contract, carefully read the clauses relating to termination, notice periods and your probation period. From this, you can determine what your obligations are. Employment contracts often go off the standard notice periods provided under the national award. However, there are circumstances where it may be longer or shorter.
If you don’t want to work out the required notice in your contract, tell your employer and explain why. They can choose for you to not work out your notice and pay you in lieu of it, or they can choose not to pay you for it. Alternatively, your employer can request that you work out your notice whilst they find someone to fill your role.
Check your Award requirements
Depending on your award, different standards will apply. For example, someone employed on a full-time basis under the building and construction award will only have to give 1 week’s notice. However, this changes once the probation period lapses. You can calculate both your leave entitlements and your required notice period by visiting the Fair Work Ombudsman website.
Giving notice through a Resignation in Writing
Once you have determined how much notice you have to give, you should write your letter of resignation. In your letter, you should clearly state how much notice you’ll be giving, your last day at work, and if relevant, refer to either the employment contract or award in your letter. This is particularly useful if you’re worried that your employer may dispute it. Make sure that you retain a copy of the resignation letter you provide. It’s important in circumstances such as these to not only comply with any terms specified in your contract or under your award but also understand your rights as an employee.
Example:
Michael works full-time at an investment bank. He has been working there for 2 months. His probationary period is for 6 months. He has decided to resign, but he has never been offered a formal employment contract with the bank. After researching his obligations, he has provided the bank with 1 week’s notice. He has written this in his resignation letter and cited the law. The bank tries to say that he needs to give them 4 weeks’ notice and threatens to sue him. Michael points to the letter, and upon his employer’s investigation, they realise that he only has to give them 1 week’s notice. This is because he has not been employed under an employment contract and so is only obliged to provide notice according to legislation.
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Frequently Asked Questions (FAQs)
How can I provide notice of resignation?
As an employee, you can provide your notice of resignation verbally or in writing.
How else can I check how much notice I’m required to give if I can’t find out through my employment contract or award?
Your enterprise agreement or workplace policy can also outline how much notice you’re required to give your employer when resigning.
Conclusion
Although a probationary period fundamentally means that an employer or employee can walk away without having to worry about working out a long notice period. It’s still important to understand what notice you’re required to give whilst you’re under probation, as legal requirements still apply.
By knowing how much notice you’re required to give during your probation period, you’ll avoid burning bridges and legal trouble, and you’ll ensure you leave on fair and legal terms.
If you’re still unsure or are concerned that you may end up breaching your employment contract, you should hire a lawyer for legal advice.
