Trial and probation period differences
By RAEWYN TRETHEWAY Knowing the ins and outs of employment is essential for both employers and employees. This week we continue with our series of articles discussing the the topic
In the employment agreement there are some terms and conditions that are required. These include annual leave terms, sick leave, hours and hourly rates. The minimum entitlements will be outlined in future articles in this series.
There are two terms that can be added to an agreement that employer and employee should be aware of, these being a trial period and a probation period.
First lets look at the trial period. An agreement can have a 90-day trial period, however this should not be confused with a probation period. There are some conditions connected to a trial period which both parties should be aware of as well.
■ The parties must agree to a trial period before the employment commences.
■ It must be in writing and include time frames – not to exceed 90 days. During the time period, the person can be dismissed and the employer does not have to give a reason. The employee is also not entitled to bring a personal grievance or any other legal proceedings.
■ This trial period can only be available for new employees and not for returning employees or for employees that have been promoted. The probationary period ■ Refers to a preliminary period of employment during which the employer will assess the employee’s suitability for the job.
■ The Employment Relations Authority [ERA] requires only that the fact of the probationary period must be specified in writing in the employment agreement.
It’s important for employers to ensure that employment documents for new employees are signed and returned before they begin the job.
For new employees whose work falls within the coverage clause of a collective agreement – whether or not they are union members – a trial period will not be effective if it is inconsistent with an applicable collective agreement term.
What is the affect of trial period compared to a probationary period on termination? An employee who is given notice of termination during a valid trial period cannot bring any legal proceedings – including a personal grievance – in regard to the dismissal.
The employer is also not required to provide written reasons for the dismissal, or information relevant to its decision. This includes an opportunity to comment.
On the other hand, an employee who is terminated during a probation period can challenge the dismissal for being procedural unfair as well as substantively unjustified. The employee has the right to written reasons for dismissal and consultation with the employer also applies.
It’s essential that employers and employees are aware of what a trial period is and what a probation period is, and the consequences of each.
If you have any questions contact Community Law Marlborough on 03 577 9919 or 0800 266 529. Agreed: Knowing your rights as an employer and employee is vital.