by When employment is subject to a trial period and the employee is dismissed during the trial period, they are prevented from taking a personal grievance for unjustified dismissal. However, employees can still take a personal grievance on other grounds, such as disadvantage, discrimination and more. There’s also a high chance that the trial period may be invalidated, leaving employers in a very tricky situation.
Because the trial period legislation (section 67A of the Employment Relations Act 2000) removes important protections and rights from an employee, the provisions are being interpreted very strictly by the Courts. This means everything will need to be in perfectly order or the employee will still be able to raise a personal grievance for unjustified dismissal. This often leaves employers in a very risky position, as a trial period dismissal often has no substantive grounds or fair process to it. As a result, if the trial period is deemed invalid, there is no protection for the employer and the likely result would be an unjustified dismissal claim established.
To make this a bit easier for you, we’ve pulled together a list of the key factors needed to ensure your 90-day trial period is valid:
Employment agreement must contain a compliant trial period clause- Employer must have fewer than 20 employees at the beginning of the day on which the employment agreement is entered into
- Employee must not have been previously employed by the employer (in any capacity/position)
- Employment agreement must be signed before the employee commences work
- Dismissal must be on notice
- Employee can’t be treated any differently to other employees
- Employee can still bring other types of grievances against the employer
- For verbal offers of employment, the employee should be advised that the offer is subject to a trial period at the time the offer is made
A note on good faith.
Good faith obligations require that employers are active and communicative with all employees, including those on a trial period. We believe that prior to dismissing under a trial period, employees should (in most circumstances) first be given a ‘heads up’ that the trial is not going well and given an opportunity to improve.
Summary.
It is important to seek advice before undertaking a trial period dismissal. There are many aspects that need to be checked to ensure the dismissal will in fact be grievance-free. We recommend you seek our advice prior to using a trial period, and certainly before you use it to dismiss!
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Please do not substitute this article for professional advice.