Policy Statement 01/2010

Issued: November 2010

Probation Policy

  • Agency Heads
  • HR Directors/Managers
  • Shared Services Centre
  • All staff

Purpose

1. To provide advice to all parties involved in a probation process about their role and responsibilities in the probation process.

Application

2. This policy:

2. 1 applies to all new staff appointed under the Public Sector Management Act 1994 (PSM Act); and

2. 2 outlines the obligations for the management of probation under the PSM Act and Agency Enterprise Agreements (Agency Agreements).

Background

3. The ACT Public Service (ACTPS) Human Resources Council has recognised the need for whole of Government human resources policy to be developed on a range of matters. This policy forms an integral part of the employment framework along with the PSM Act, the Public Sector Management Standards (the Standards) and Agency Agreements.

General

4. Probation is a critical employment process for ensuring the suitability of a person engaged for the position they hold in the ACTPS.

5. The main purpose of the probationary process is to allow for an assessment to be made of the conduct of the officer on probation against requirements under Section 9 of the PSM Act and his or her work performance against the set of duties for the job he or she is performing.

6. The probation period also allows sufficient time for induction, commencement of a Performance Management Plan and medical and criminal history record checks to be performed.

7. For managers investing time and resources in the assessment of performance during an officer’s probation period can deliver longer term benefits for the agency, by:

• providing a fair and transparent process;

• limiting the risks associated with poor recruitment decisions;

• improving the quality of management through the provision of clear job expectations, continuing guidance, feedback, formal reviews and support; and

• ensuring that new officers are engaged and appropriately inducted into an agency.

8. Probation provides an opportunity for new officers to determine whether or not the position meets their expectations and requirements.

9. It is therefore in the interest of the Agency and the officer on probation that the requirements of this policy are applied properly.

Principles

10. The following principles apply to the probation process:

10. 1 the probation process is recognised as an important component of the appointment process;

10. 2 the probation period is a defined period of time during which a new officer’s performance is subject to formal review;

10. 3 during the probation period, new officers must be provided with clear job expectations, continuing guidance, feedback, formal reviews and support;

10. 4 the probation period enables the suitability of an officer on probation suitability for employment in the ACTPS, conduct, work performance and behaviour to be assessed; and

10. 5 if deficiencies are identified in an officer on probation’s conduct, work performance or behaviour during the probation period corrective action should be undertaken including relevant staff development and training.

Specific Matters

Probation – Notice of Engagement

11. Agencies must inform each officer on probation in writing, at the time of engagement, of the terms of their appointment, including:

11. 1 the type of employment;

11. 2 whether a probationary period applies;

11. 3 the expected duration of the probationary period;

11. 4 that the probationary period may be extended;

11. 5 the maximum period of extension; and

11. 6 any other relevant information e.g. the criteria and objectives to be met for the appointment to be confirmed.

12. The letter of offer to the officer on probation must be precise about the period of probation, any possible extension of the initial period and about any maximum period of probation.

13. The period of probation should be used to ensure that the officer on probation is aware of, and able to comply with all of their responsibilities as a member of the ACTPS including the obligations of public employees (sometimes referred to as the Code of Conduct) set out in section 9 of the PSM Act.

14. The officer on probation should be advised that failing to comply with the section 9 at any time during their employment in the ACTPS may result in disciplinary actions being taken, up to and including termination of employment.

Appointment without probation

15. The PSM Act provides that a chief executive may approve an appointment without probation. Appointment without probation should only be approved where a chief executive is satisfied that:

15. 1 appointment without probation would be in the public interest; or

15. 2 the person was engaged in prescribed employment and had been so fora period of not less than 12 months immediately before the date of appointment; or

15. 3 a person has worked as a temporary employee for a period of six months or more and his or her performance and conduct meets the required standard.

Probation Period

16. For most ACTPS employment, the period of probation, should be three months. A longer period may be determined, as long as the period is reasonable, having regard to the nature and circumstances of the employment but should not exceed 12 months.

17.When deciding on the length of probation for an officer on probation, or a group of officers on probation, the Agency must consider the nature and circumstances of the employment and not merely the circumstances of the position held, including:

17.1 whether the duties of the job are particularly complex;

17.2 whether the purpose of probation is to provide a period of training for the officer on probation and to allow an assessment to be made of the officer on probation’s aptitude and capacity to do the work, once trained;

17.3 the officer on probation’s previous experience, including training; and

17.4. situations that may occur during the course of the probationary period for example, an extended period of leave or an extended standown period.

Extension of Probation

18. The PSM Act provides for a maximum period of probation of twelve months.

19. A decision to extend a probationary period may be taken, provided:

19. 1 that the possibility of extension, including the maximum period of extension was included in the officer’s original letter of offer; and

19. 2 the officer on probation’s performance, or conduct, has not met the standards outlined at the commencement of employment; and

19. 3 the agency has decided not to terminate the appointment.

20. If an officer on probation is not advised that their probation will be extended prior to the end of the initial period of probation the period of probation cannot be extended. The officer on probation’s appointment will need to be either confirmed or terminated in this case.

21.In addition to reasons of performance additional grounds for extension may include:

21. 1 excessive leave during the probation period; or

21. 2 factors beyond the officer on probation’s control which have hindered the ability to adequately assess the officer on probation during the probation period (e.g. disruption to work or personal circumstances).

22.Where a probationary period is to be extended the officer on probation must be advised in writing:

22. 1 of the extension;

22. 2 of the new period of probation;

22. 3 of the reasons for extension; and

22. 4 that, if the performance standards are not met, the probationer’s employment may be terminated.

23. In the event of an extension, it is crucial that continuous follow-up takes place and vigorous reporting and training/development is provided (where relevant dependent on the circumstances of the extension).

24. The chief executive must notify Shared Services, Recruitment Services, in writing of any extension to a probation period.

Temporary Transfer and Higher Duties Allowance during probation

25. Offers of temporary transfer, whether involving Higher Duties Allowance (HDA) or not for officers on probation during the probation period should be considered carefully. Before approving a temporary transfer the relevant chief executive should consider whether a fair and reasonable assessment of the officer on probation can be made against the duties of the position to which they were appointed, how any remaining probation period is to be assessed and by whom.

End of probation - Where the appointment is to be confirmed

26. Confirmation of an appointment will be made at the end of the probation period on the basis that the officer on probation has:

26. 1 passed a medical examination;

26. 2 a satisfactory attendance record;

26. 3 been assessed and their performance is determined to be satisfactory against the duties of the position they have been appointed to; and

26. 4 been assessed as a fit and proper person to remain an officer of the service on the basis of satisfactory criminal history record check and proper behaviours which comply with section 9 of the PSM Act.

27.Following the chief executive’s formal notice of confirmation of the appointment, managers must ensure that the original of the final probation report is sent to Shared Services, Recruitment Services and that a copy of the final probation report is provided to the new appointee. Shared Services, Recruitment Services will forward a formal notice of confirmation of appointment to the new appointee after receiving the final probation report.

End of probation - Where the appointment is to be terminated

28. An appointment may be terminated by the relevant chief executive at any time before the appointment has been confirmed. Any such termination must be implemented in a manner that is consistent with the principles of procedural fairness. The relevant chief executive should terminate the appointment on the grounds that they:

28. 1 are not satisfied, after receiving a report from an authorised medical practitioner, as to the officer on probation’s health and fitness; or

28. 2 consider, after receiving a report from the officer on probation’s manager or another appropriate staff member, that performance of the officer on probation’s duties has not been satisfactory; or

28. 3 consider that the officer on probation is not a fit and proper person to remain an officer of the service on the basis of his or her criminal history record check or other behaviours which do not comply with section 9 of the PSM Act; or

28. 4 are satisfied that the officer on probation is an excess officer.

29.The officer on probation must have been adequately counselled regarding his or her poor performance and given the opportunity to respond to any recommendation to terminate his or her appointment.

30. The officer on probation must be given at least fourteen (14) calendar days written notice of any decision to terminate the officer’s on probation appointment during the probation period.

31.An officer on probation (or their union/representative) can seek a review of any actions or decisions taken by the agency in relation to his or her employment during the period of probation under the internal review process of their Agency Agreement. However, it is not open to an officer on probation to seek an internal review of a decision by an agency to terminate his or her appointment on probation or a review of the process leading to any such decision.

32.The timing of any decision to terminate the appointment of an officer on probation (whatever the duration of the probation) may have implications for the Agency and for the officer due to the requirements of the unfair dismissal provisions of the Fair Work Act 2009 (FW Act). If a notice of termination of the appointment is given to the officer on probation within 6 months of the date of appointment, then the officer would not be eligible to make a claim for unfair dismissal to Fair Work Australia (FWA). However, if a notice of termination of the appointment is not given to the officer within 6 months of the date of appointment, then the officer would be eligible to make a claim for unfair dismissal to FWA. It is therefore in the interests of the Agency to ensure that any action to terminate the appointment of an officer on probation is consistent with the principles of procedural fairness and that the requirements of this policy are strictly followed. This will be particularly important for any decision to terminate the appointment of an officer on probation that is made more the 6 months after the officer’s appointment. The PSM Act provides that if an officer’s appointment on probation has been neither confirmed nor terminated after 12 months, from the date of the appointment, the chief executive must either confirm the appointment or terminate it.

33.An officer on probation whose appointment has been terminated is not eligible for reappointment to the service within a period of 12 months immediately following termination. However, in accordance with the PSM Act, the Commissioner for Public Administration may, following a request and after considering all the circumstances, determine that a person can be appointed within the 12 month period.

Specific Responsibilities include:

Agencies roles and responsibilities (Agency responsibilities are carried out by the chief executive or a person delegated to exercise the power)

34.Agencies have specific responsibilities in managing the period of probation including:

35. 1 informing the officer on probation, at the time of appointment, of what is necessary for their appointment to be confirmed (letter of offer);

35. 2 advising the officer on probation, during the probationary period of their work responsibilities, the required standards of work and the standard of conduct expected. This process should be recorded in writing, especially where there is an intention to extend the probationary period or terminate the appointed;

35. 3 managing the probation process, including providing the officer on probation with a copy of this policy, arranging delegate approvals, assessments, completing reports, determining extensions and/or termination of appointment, in line with ACTPS legislative requirements;

35. 4 ensuring they have the appropriate delegation to sign off and manage the probationary process – see agency delegations and Agency Agreement;

35. 5 conducting assessments, in consultation with the officer on probation, in an open, honest and constructive manner that provides both the delegate and officer on probation with an opportunity to discuss the officer on probation’s conduct and performance against the standards provided at the commencement of employment;

35. 6 conducting at least two formal assessments, at least eight weeks apart, of an officer on probation during the probationary period;

35. 7 advising the officer on probation of the process by which he or she will be informed of assessment procedures, including that he or she will have an opportunity to respond to assessment reports;

35. 8 ensuring that where the officer on probation’s performance is considered to be less than satisfactory, agree on a reasonable plan to assist the officer on probation to achieve the required performance standards during the remaining probationary period. This plan must then be documented in the probation report;

35. 9 providing the officer on probation with a copy of the probation report with an opportunity for the officer on probation to respond within seven working days. The officer on probation should be asked to read and sign the report: this signature is an acknowledgement that the officer on probation has seen the report, not of their agreement with its contents. The officer on probation may provide comments on the probation report or their own statement in relation to the report if he or she wishes to do so;

35. 10 providing support to the officer on probation, as well as exercising the role of assessor. Specific on-the-job training or development opportunities must be provided by the workplace to help the officer on probation perform in his or her job;

35. 11 providing regular feedback to the officer on probation. Regularly monitoring the performance of the officer on probation and giving regular feedback provides the opportunity for the officer on probation to rectify any performance problems during the probation period;

35. 12 providing the necessary advice to Shared Services, Recruitment Services at different stages of the probationary process;

35. 13 in the event that an agency intends to extend a period of probation for an officer on probation the agency must ensure that such advice is provided to Shared Services, Recruitment Services, with sufficient

time to enable the relevant administrative processes to be completed before the end of the probationary period; and

35. 14 in the event that an agency intends to terminate the appointment of an officer on probation, prepare formal notification of termination of employment for the officer on probation and provide counselling and feedback as appropriate.

Officer on probation responsibilities:

36. The officer on probation:

36. 1 must participate in the probationary process;

36. 2 must read and sign a copy of the probation report, when asked to do so by the chief executive, within seven working days. The probationer may provide comments on the probation report or attach their own statement in relation to the report if they wish to do so; and

36. 3 must inform the chief executive if there are any factors beyond the officer on probation’s control which may affect the ability of the chief executive to adequately assess their performance during the probationary period;

Shared Services role and responsibilities:

37. Shared Services have specific role and responsibility in assisting with the management of the period of probation including:

37. 1 preparing letter of offer of appointment to the ACTPS incorporating probation period and extension period based on the PSM Act, Agency Agreements and advice from agencies for non-standard probation arrangements;

37. 2 sending a probation report template to the agency as part of the officer’s commencement process;

37. 3 preparing and sending confirmation/extension of appointment letters;

37. 4 checking that all pre-appointment requirements have been completed on receipt of the final probation report. (Where it is identified that the probationer has not completed all pre-appointment requirements the probation cannot be confirmed or taken to be confirmed until such time as the pre-appointment requirements have been completed. In this case the probationer, the chief executive and the Agency HR area will be notified immediately); and

37. 5 reporting to agencies on their management of probation.

Legislative Reference

38. Legislative references include:

• Fair Work Act 2009;

• Fair Work Regulations 2009;

• Agency Enterprise Agreements;

• ACT Public Sector Management Act 1994;

• ACT Public Sector Management Standards (subordinate law); and

• Territory Records Act 2002.

Dictionary

Chief Executive:

Means the chief executive of the relevant administrative unit or a person or office authorised to exercise a function or power of the chief executive through an instrument of delegation.

Related Policy

39. Related Policy may include: