Hiring a new team member is exciting - you’re shaping your culture and investing in the future of your business. It also means navigating Australia’s workplace laws from day one, including how to handle leave during a probation period.
If a new starter asks to take sick leave or annual leave in their first few months, what are your obligations? Can you say no? And what happens if significant leave is needed early on?
In this guide, we explain how leave works during probation in Australia, what you must allow under the National Employment Standards (NES), the limits around refusals, and the best-practice documents and processes to have in place so you can manage requests fairly and compliantly.
What Is A Probation Period In Australia?
A probation period is a defined period at the start of employment - commonly three to six months - where you assess a new employee’s suitability for the role. It should be set out in the Employment Contract, including the length of probation, how performance will be assessed, and the notice required if employment ends during this time.
Probation helps you evaluate performance, conduct and cultural fit. At the end, you’ll either confirm employment, end employment (with the correct notice), or extend probation if your contract allows.
Critically, probation doesn’t switch off Australian workplace laws. The NES still apply from day one for eligible employees, including leave entitlements and protections explained below.
What Leave Can Be Taken During Probation?
In Australia, full-time and part-time employees start accruing leave from their first day of work. Probation does not remove these minimum entitlements. Here’s what typically applies.
Personal/Carer’s Leave (Sick Leave)
- Accrues from day one at the rate of 10 days per year for full-time employees (pro rata for part-time).
- Can be used if the employee is unwell, injured, or needs to care for an immediate family or household member.
- If a permanent employee hasn’t accrued enough paid personal leave, you can agree to further time as unpaid leave or another form of leave.
Annual Leave
- Accrues from the employee’s start date at four weeks per year for full-timers (pro rata for part-time).
- Employees can request annual leave during probation, subject to your approval and operational needs.
Compassionate Leave
- Available from day one if a member of the employee’s immediate family or household dies or suffers a life-threatening illness or injury.
- Permanent employees are entitled to paid compassionate leave; casuals receive it unpaid.
Paid Family And Domestic Violence Leave
- All employees - full-time, part-time and casual - are entitled to 10 days of paid family and domestic violence leave per 12-month period.
- This entitlement is available upfront from day one (it doesn’t accrue) and renews on the employee’s work anniversary.
- It is paid at the employee’s full rate for the hours they would have worked (for casuals, paid for rostered hours).
- Employers may ask for reasonable evidence, and strict confidentiality rules apply to protect the employee’s safety and privacy.
Other Unpaid Leave Options
- In some situations, employees may request unpaid leave, such as where paid personal leave has been exhausted. Whether you approve will depend on the circumstances and your operational needs. See more on unpaid leave.
What About Casual Employees?
- Casuals do not accrue paid personal or annual leave (they receive casual loading instead), but they do have access to paid family and domestic violence leave and unpaid compassionate leave, along with some other minimum entitlements.
If your team is covered by a Modern Award or enterprise agreement, check if any additional or different rules apply. You can find help with award obligations here: Modern Awards.
Managing Sick And Annual Leave During Probation
Granting leave fairly during probation is about applying the NES, following any award or agreement, and setting clear internal expectations. Here’s how to manage the most common scenarios.
Evidence And Notice For Personal/Carer’s Leave
- You can require reasonable evidence - such as a medical certificate or statutory declaration - for personal/carer’s leave, including during probation.
- Employees should provide notice as soon as practicable. If the absence is foreseeable (e.g. medical appointments), request advance notice where possible.
- Have a simple process for notifying absences (who to contact, by when, and what evidence is expected). A short workplace policy keeps it consistent; Sprintlaw can help you set a clear Workplace Policy.
For more detail on evidence rules, see when employers can request medical certificates.
Pay For Personal/Carer’s Leave
- Paid personal/carer’s leave is paid at the employee’s base rate for ordinary hours they would have worked.
- If an employee has run out of paid personal leave, additional time off may be unpaid (by agreement) or taken as annual leave if approved.
Approving Annual Leave During Probation
- Annual leave requests can be approved or refused on reasonable business grounds. Examples include peak trading periods, short staffing, or where the employee hasn’t accrued enough leave for the requested period.
- It’s good practice to discuss any pre-booked leave at offer stage and document your approach in the Employment Contract and policies to avoid surprises.
For common questions about refusals, see whether you can refuse annual leave.
Set Expectations Early
- Tell new starters how to request leave and what evidence is needed.
- Where appropriate, explain if annual leave during probation will generally be limited unless pre-agreed or exceptional.
- Keep decisions consistent and record the reasons for approvals or refusals.
Probation, Termination And Risk: Unfair Dismissal vs General Protections
Sometimes significant leave is needed early in employment. It’s important to distinguish your legal risks when performance or fit concerns arise during probation.
Minimum Employment Periods For Unfair Dismissal
- Unfair dismissal protections generally apply after the minimum employment period - six months for employers with 15 or more employees, and 12 months for small business employers (fewer than 15 employees).
- This means many probationary employees will not be eligible to bring an unfair dismissal claim if employment ends during probation, provided you meet notice and other obligations.
General Protections Apply From Day One
- Even during probation, you must not take adverse action (like dismissal) because an employee exercised a workplace right - including taking lawful leave such as personal/carer’s leave or paid family and domestic violence leave - or because of a protected attribute (e.g. pregnancy, disability, race, sex).
- Always separate performance or conduct concerns from lawful leave use, and document your reasoning and process.
Process Still Matters
- Follow the notice period in the Employment Contract and ensure final pay is correct, including any accrued but untaken annual leave.
- If you’re considering ending employment during probation, it’s wise to get tailored advice - see our guide on terminating employment during probation.
Documents And Policies To Manage Leave From Day One
Clear documents make leave during probation simple to manage and reduce disputes.
Core Documents
- Employment Contract: Set the probation length, notice, leave entitlements, and expectations about annual leave during probation (for example, pre-booked leave only or business-needs approval).
- Workplace Policy (Leave): Outline how to request leave, required notice, acceptable evidence for personal/carer’s leave and FDV leave, confidentiality expectations, and approval criteria for annual leave.
- Staff Handbook: Bring your key policies and procedures together so new starters can quickly understand how your workplace runs.
- Absence Notification Process: A simple, one-page guide on who to contact, by when, and what to include (especially helpful for early-stage teams).
Practical Tips For Compliance And Culture
- Apply the NES consistently to probationary employees - probation isn’t a reason to deny minimum entitlements.
- If you’re covered by a Modern Award or enterprise agreement, check any extra rules that affect leave or evidence requirements.
- Keep records of leave requests, decisions and any supporting evidence. Consistency and documentation are your best risk controls.
- If medical clearance is relevant before a return to work (for example, after a serious illness or injury), approach it carefully and lawfully. This resource may help: requesting medical certificates.
Key Takeaways
- Full-time and part-time employees accrue personal/carer’s leave and annual leave from day one, and those rights continue during probation.
- All employees - including casuals - receive 10 days of paid family and domestic violence leave each year, available upfront from their first day.
- You can require reasonable evidence for sick and carer’s leave, and you may refuse annual leave during probation on reasonable business grounds.
- Unfair dismissal protections generally start after the minimum employment period, but general protections apply from day one - never dismiss someone because they used lawful leave.
- Set expectations early with a clear Employment Contract, a practical leave policy and an easy absence notification process, and check any applicable Modern Award.
- If you’re unsure how to handle a tricky probation or leave situation, getting tailored advice early will reduce risk and help you make fair, compliant decisions.
If you’d like a consultation on handling leave during probation or any employment law issue in your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
