Trial and pro­ba­tion pe­riod dif­fer­ences

Marlborough Midweek - - Front Page -

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.

Photo: FILE

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