Pro­ba­tion and ca­sual work­ers

Kapiti Observer - - OUT & ABOUT - ALAN KNOWSLEY LE­GAL MAT­TERS

In a prior col­umn I cov­ered trial pe­ri­ods and pre-em­ploy­ment checks.

In this ar­ti­cle I look at pro­ba­tion pe­ri­ods, ca­sual con­tracts and fixed term agree­ments.

PRO­BA­TION PE­RI­ODS

What can you do when you are think­ing about plac­ing an ex­ist­ing em­ployee into a new role, but you are not sure if they are up to it?

How can you give those em­ploy­ees a chance to prove them­selves, with­out get­ting stuck in an em­ploy­ment agree­ment that they can­not live up to?

As a pre-ex­ist­ing em­ployee, you can­not put them into a trial pro­vi­sion.

How­ever, you can agree to a pro­ba­tion pe­riod.

A pro­ba­tion pe­riod must be agreed to in writ­ing by both the em­ployer and the em­ployee.

The pro­ba­tion can only be for as long as is nec­es­sary to as­cer­tain the em­ployee’s suit­abil­ity.

The em­ployer may also have obli­ga­tions in terms of pro­vid­ing sup­port and train­ing, and be­ing open and com­mu­nica­tive about how the em­ployee is per­form­ing.

An em­ployee on a pro­ba­tion pe­riod can lodge a per­sonal griev­ance for un­jus­ti­fied dis­missal.

Em­ploy­ers must have a good rea­son to dis­miss the em­ployee - you must fol­low a fair process in com­ing to that de­ci­sion.

CA­SUAL EM­PLOY­EES

A ca­sual em­ployee is some­one who has no ex­pec­ta­tion of con­tin­ued work, and the em­ployer has no ex­pec­ta­tion on the em­ployee’s avail­abil­ity to work.

This type of ar­range­ment works well if you need oc­ca­sional ex­tra staff, but can­not al­ways pre­dict when or for how long.

If you are not sure whether you have enough work for an em­ployee, you should en­ter into a ca­sual agree­ment.

If later it be­comes ap­par­ent that you need a more per­ma­nent em­ployee you can agree to a per­ma­nent ar­range­ment. If this hap­pens then you will al­ready be fa­mil­iar with the em­ployee and their suit­abil­ity.

A pit­fall to avoid is when an ini­tial ca­sual ar­range­ment grad­u­ally turns into a more reg­u­lar ar­range­ment.

Once the work be­came reg­u­lar and the par­ties de­velop an ex­pec­ta­tion of con­tin­ued work, the em­ploy­ment re­la­tion­ship is no longer ca­sual, de­spite what is recorded in any agree­ment.

If you are not sure whether you have enough work for an em­ployee, you should en­ter into a ca­sual agree­ment.

FIXED TERM AGREE­MENTS

Fixed term agree­ments have a clear start and fin­ish date.

If you have a big project, for which you need ex­tra em­ploy­ees, but you can­not keep them on per­ma­nently after the com­ple­tion of the project, a fixed term agree­ment might be ideal.

This is also a good way to cover for em­ploy­ees on long term leave (like ma­ter­nity or sab­bat­i­cal leave).

There must be a gen­uine busi­ness rea­son for the fixed term and it has to be set out in writ­ing for the em­ployee.

It can­not be used to as­sess suit­abil­ity for a per­ma­nent po­si­tion but if a gen­uine rea­son ex­ists for the fixed term there is noth­ing to pre­vent an em­ployer of­fer­ing a per­ma­nent role in due course.

An em­ployer has no obli­ga­tion to pro­vide fur­ther em­ploy­ment after the agree­ment end date. You can find our free step by step guides to han­dling em­ploy­ment is­sues on our web­site in the Your Re­sources section.

Col­umn cour­tesy of Rainey Collins Lawyers phone 0800 733 484 or email aknowsley@rain­ey­collins.co.nz

Pro­ba­tion pe­ri­ods, ca­sual con­tracts and fixed term agree­ments.

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