Myths about being dismissed on probation
You have heard things about probation dismissals and are not sure which are true.
Some beliefs about probation dismissal are repeated so often that they sound like settled fact. Some are close to true and some are not, and the difference changes what you should do next.
Myth: probationers have no rights at all
False. Probationers can bring an unfair dismissal claim under Section 20 if they believe the dismissal lacked just cause or excuse, just like a confirmed employee.
Being unconfirmed does not remove this right. It affects only one remedy if a claim succeeds.
Myth: the burden shifts to you during probation
Also false. Your employer still has to show just cause or excuse for the dismissal, the same standard as for any other worker.1
You do not have to prove your own innocence first, whatever your confirmation status was.
Myth: any negative feedback automatically justifies dismissal
False. One negative review, without a real chance to answer the concerns, may not make a dismissal fair.
A pattern of clear, consistent feedback is different.
Ask for the specific concerns in writing, and compare them with any targets you were actually given.
Myth: an extended probation means nothing changed
Question this one. If your probation kept being extended instead of ending in confirmation or dismissal, that pattern can affect how your dismissal is judged.
At an agreed consultation with an identified lawyer, bring the exact dates of every extension for review, with everything else.
Myth: a lower remedy cap means there is no point checking
Only partly true. Back wages for a probationer are capped at twelve months, compared with twenty four for a confirmed employee.2
A lower ceiling does not mean there is no claim. It only means the money at stake differs.
What should you do this week?
Write down which of these you had assumed were true, and check each against your own situation. Read your rights after a probation dismissal, and confirm your window with the deadline calculator before you file a Section 20 representation.
If you want a lawyer to act, an independent employment lawyer can review your facts and tell you whether it is a case they can take on.
If you are seriously considering a claim over your probation dismissal, request lawyer contact first; only after an identified independent lawyer has contacted you and specifically requested the material, send your probation terms and the reason given. An independent employment lawyer can tell you whether it is worth pursuing, and act for you if it is.
For people seeking legal representation. For general information, please use our guides and tools.
First contact: general facts only, such as date, location, employment status and a short summary. Keep documents private until an identified independent lawyer contacts you and specifically requests them.
Common questions
Myth, probationers have no unfair dismissal rights at all. True or false?
False. Probationers can still bring a claim under Section 20 if they believe the dismissal lacked just cause or excuse, the same as any other worker.
Myth, the burden of proof shifts to me during probation. True or false?
False. The burden still rests with your employer to show a fair reason for the dismissal, whatever your confirmation status.
Myth, any negative feedback justifies a fair dismissal. True or false?
False. A single negative review, without a genuine chance to address the concerns raised, may not meet the standard of a fair dismissal on its own.
Myth, I get less compensation so it is not worth checking my rights. True or false?
Partly true on the numbers, but not on whether checking is worthwhile. A lower cap does not mean no claim exists, and finding out where you stand costs you nothing.
Sources
- In an unfair dismissal case, the burden of proof rests on the employer to show just cause or excuse for the dismissal. Mah Weng Kwai & Associates
- Back wages awarded by the Industrial Court are capped at twenty four months for a confirmed employee, or twelve months for a probationer, assessed up to the last day of hearing. DNH
Keep reading
If you are seriously considering a claim over your probation dismissal, request lawyer contact first; only after an identified independent lawyer has contacted you and specifically requested the material, send your probation terms and the reason given. An independent employment lawyer can tell you whether it is worth pursuing, and act for you if it is.
For people seeking legal representation. For general information, please use our guides and tools.
First contact: general facts only, such as date, location, employment status and a short summary. Keep documents private until an identified independent lawyer contacts you and specifically requests them.