We write employment law commentary for the Deals on Wheels magazine. Read our full article here: 90 day trial period law. Employment Law Auckland More affordable than an employment lawyer. Unfair Dismissal Case Form.
Unfair Dismissal Case Form Trial period mistakes Any defect will allow an employee to pursue an unjustified dismissal claim. No written employment agreement. Trial periods can only be used for up to 90 days. A probationary period is not limited to 90 days, so it could potentially be used for a longer assessment period, if agreed and reasonable. Trial periods An employer with 19 or fewer employees can use a trial period for up to 90 days as long as this is agreed in the written employment agreement before the employee starts work.
Probationary periods Can be used to find out if an employee can do a new job or for employees who are changing jobs with the same employer. And include a shorter notice period in your employment agreement for termination during the day trial period than for other grounds of termination. Even though the day trial period law does not specify any process that must be followed to dismiss, other than giving notice during the trial, the Employment Court has found significant aspects of the duty of good faith must continue to be observed during the notice period.
That duty requires employers and employees to be responsive and communicative and means that if the employee wants to know why they were terminated at the time they are given notice of their dismissal, the employer must give their reasons. The employer does not have to give written reasons because the requirement to give a written statement of the reasons for dismissal is expressly excluded under section 67B 5 , but they must give the employee a sense of why the employment has not worked out if the employee so requests.
Understandably, employers are reticent to be too honest when it comes to giving reasons, and are often unsure what they can or cannot say. But they should feel free to be honest, knowing that they cannot be sued for the reasons they had for dismissal provided an effective day trial period is in place. In fact, the obligation to act in good faith means you must not mislead the employee about why they have been dismissed. So honesty is the only option.
Takeaway : If the employee asks why they have been dismissed, give them your honest reasons. Even though employees who are dismissed during a trial period cannot bring claims in respect of their dismissal, they can bring any other claim that an employee might otherwise raise. The important thing to remember is that employees under trial periods must still be treated just like any other employee should be, in good faith and reasonably.
An employer may still be subject to claims from trial period employees if they fail to act in that way. The day trial period law has a number of fish-hooks that continue to catch employers out.
From the cases that have considered the law so far, there are several steps the employers should be careful to follow if they want to avoid a personal grievance for unjustifiable dismissal. Before moving to dismiss someone under a trial period, an employer should ensure that ensure it had less than 20 employees at the start of the day the agreement with the employee was entered into, and the employee:.
Sections 67A and 67B of the Act allow an employer to dismiss an employee if: the employee has not been employed by that employer before; the employer had less than 20 employees at the start of the day the employment agreement was entered into; there is a clause in a written employment agreement with the new employee specifying certain details of how the day trial period will operate; and the employer gives notice to dismiss the employee within the trial period.
This can be easily overlooked where: the person was employed a long time ago; or the person was employed in a relatively minor position, eg. Logically then, an employer cannot dismiss an employee under a day trial period if: there is no written employment agreement; there is a written employment agreement, but it does not contain a day trial period clause; or there is a day trial period clause in a written agreement, but the clause does not include the information required by the Act.
How to write a day trial period clause So how do you ensure you create an agreement that meets the statutory test for a valid trial period clause?
There is no prescribed form for the day trial period clause, but it must at least state the following three things: the date the trial period is to commence; that for the first 90 days of employment the employee will serve a trial period it is possible to state a shorter period, but it cannot be any longer than 90 days ; during that period the employer may dismiss the employee; and if the employer does so, the employee is not entitled to bring a personal grievance or legal proceedings in respect of the dismissal.
Here is a suggested wording for the day trial period clause that can be included in an employment agreement for new employees: For the first 90 days of employment, the Employee will serve a trial period in accordance with sections 67A and 67B of the Employment Relations Act No signature, no written agreement Some employers may be caught out if they provide a written agreement to prospective employees but fail to get the agreement signed before the employee starts work.
No fair bargaining, no enforceable agreement Another area of risk for employers is where they provide a written agreement containing a day trial period, but do not give the employee a fair opportunity to consider and seek advice on it, before accepting its terms.
The minimum elements of fair bargaining for an individual employment agreement are set out in section 63A of the Act and require that the employer: give the employee a copy of the intended employment agreement; advise the employee of their right to seek independent advice about the intended agreement; give the employee a reasonable opportunity to seek that advice; and consider any issues that the employee raises and respond to them.
So what is the difference? Probationary periods are fundamentally different from day trial periods in that they: are not limited to periods of 90 days. They can be for any period that the parties agree on; and do not protect the employer from the employee bringing a personal grievance for their dismissal.
The dismissal must still be justified as fair and reasonable by the employer, though that test may be a little easier to meet if the employee is aware their performance is being monitored. An employer can dismiss you and you cannot raise a personal grievance for unjustified dismissal if the trial period was valid.
A trial period begins when you start work and can be for up to 90 days — your contract must say how long it is. A trial period only applies to employees who have not worked for the employer before.
Trial periods — Employment NZ. Even if an employee is on a trial period, they can still bring a personal grievance on grounds other than their dismissal, for example discrimination or harassment.
0コメント