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.
Frequently Asked Questions
Normally an employee will have an individual employment agreement. Collective employment agreements tend to be the domain of union-based workers.
Individual employment agreements need to be in writing and signed by you and your employee. It should include:
- employer and the employee names
- job description
- hours and location of job
- the wages or salary that you will pay to the employee, as well as incentives such as bonuses
- redundancy clause
- jargon-free explanation of the services available for employment relationship problems
- any trial period
It is sometimes tempting to use an agreement you have had for many years, a generic 'template' agreement, or one taken from a mate of a mate. It is vital the agreement correctly records the specific terms of the employment relationship, as mistakes can be costly. A bespoke employment agreement will contain clauses to give you more power and confidence.
It is best to get these drafted by a professional to tailor to the needs of your workplace and taking into account any special policies in place (such as staff discounts, use of company vehicles, or bonus provisions), or requirements specific to your workplace, such as health and safety policies and restraints of trade.
Caution must also be exercised with fixed term and casual agreements as both have specific contractual requirements. If these requirements are not fulfilled then the employer faces the possibility of having its powers under those agreements eroded.
Provided that an offer of employment has been made, and accepted, your employee is "a person intending to work" whether or not they have signed an employment agreement.
Be aware that an employee who does not have an agreement prior to beginning work may then bargain on each and every point in the agreement, when it is presented after commencement of employment. The employer and employee may then negotiate over the terms until they come to agreement.
From 1 July 2011, it was mandatory a signed employment agreement is held on file by you for every employee. This will include casual, part-time, fixed term and permanent employees.
There are many reasons you may need a lawyer in employment matters. It is an unfortunate reality that things don't always work out in the workplace.
In recessionary times it is unfortunate that sometimes work may dry up and you end up overstaffed. Or, you may decide to take your business in new directions and plan to reduce your workforce. Either way, you will probably be looking to make various positions redundant.
If you are in this position, you need to consider a few aspects:
- Your staff's position must genuinely be surplus to requirements
- There needs to be a genuine business reason to end a position. So you can't get rid of a position and then re-advertise the role when it is virtually identical to the previous position.
- The position redundancy can not be related in any way to performance of your staff
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