The 90-day trial period
As of 1 April 2011, the 90-day trial period under section 67A and 67B of the Act will be available to all employers, rather than just those with under 20 employees at the time of hiring. This will have benefits, however, we anticipate that there will be a large body of employers who are lulled into a false sense of security by the perception that an employee cannot raise a personal grievance under the 90-day trial period if they are dismissed during that period.
That perception is both right and wrong.
An employee may not raise a personal grievance in respect of a dismissal that occurs during the 90-day period, providing that the trial period has been correctly entered into.
Of course, the employee may commence a personal grievance in respect of any of the other grounds set out in section 103(1)(b) to (g) of the Act.
The employer and the employee must agree to the trial period, prior to the employee commencing employment. It is also vital that this agreement is recorded by way of a signed employment agreement, incorporating the trial period. This agreement must be signed by both parties prior to the employee being allowed to commence work. The trial period is only open to “new” employees, and employees who have commenced work prior to signing an agreement incorporating the 90-day trial period are no longer “new” employees.
The effect of not having a signed agreement prior to commencement of employment in this case will mean that the employer cannot rely on the 90-day trial period to dismiss an employee, and also that the employee may raise a grievance if the dismissal is substantively unjustifiable and/or handled in a procedurally incorrect manner.
Helen Wendelborn
Michael Robinson
