To be effective at common law, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable. Common law principles apply to determine when a dismissal with notice takes effect.

A distinction must be made between assessment of capacity and conduct as opposed to suitability for a particular role; promotion to a different role by one employer does not cause loss of unfair dismissal protection.

An employer retains the right to dismiss for valid performance or conduct reasons during a probationary period; the probationary period represents a loss of immunity from review of the dismissal, not a loss of capacity to dismiss.

Contractual probationary period clauses stating that they do not impact on the minimum employment period cannot override the proper operation of the Fair Work Act 2009.

Dismissal during a probationary period may constitute adverse action if the reason includes exercise of a workplace right, but the onus on the employer under s.361 may be discharged by evidence that the dismissal was based on unsatisfactory performance objectively assessed.

The minimum employment period for non-small business employers is 6 months ending at the earlier of the time when the person is given notice of dismissal or immediately before the dismissal.

For a non-small business employer, the minimum employment period is 6 months ending at the earlier of the time when notice of dismissal is given or immediately before dismissal.

The minimum employment period is 6 months for non-small business employers and 12 months for small business employers, measured to the time of notice of dismissal or immediately before the dismissal, whichever is earlier.

For an employer that is not a small business employer, the minimum employment period is 6 months ending at the earlier of when notice of dismissal is given or immediately before the dismissal.

The minimum employment period for a non-small business employer is 6 months, calculated by reference to the earlier of the time notice is given or the time of dismissal.

The specified task exception in s.386(2)(a) does not apply where the task of cleaning work at a particular site continues to be performed by other employees after the subject employee's dismissal, the task is ongoing, and the employee was employed by the labour-provider not the client.

A person is protected from unfair dismissal only if they have completed a period of employment of at least the minimum employment period as defined by s.383.