Be sure on law of three month trials
Most people know that employment agreements are required by law for every person you employ – even the casual relief milker.
However, many still get caught out with understanding the 90-day trial period clause and how to use it.
There is now a reasonable amount of case law developed around this and the 90-day trial period remains, in my opinion, an excellent and valid tool that I recommend employers use – so long as they use it correctly.
Here is a quick guide on the 90-day trial period:
The applicants must know during the interview process that a 90-day trial period is part of the terms and conditions of employment that will be offered to a successful applicant.
The employment agreement including the trial clause, business/farm handbook and any other staff policies need to be provided to the applicant to take away and look through. They must have the opportunity for independent advice at least two days prior to when the employment agreements will be signed.
The employment agreement including the trial period clause must be signed before the employee sets foot on farm to do any work at all.
Once started it is good practice to sit down with the employee every two weeks during the trial period and discuss how they are going. Cover any concerns that have developed and provide training to assist where practical.
This is essential as the employee is still entitled to know how they are going in the workplace and if they are not performing as expected to have a chance to correct this.
This also ensures that, if the employment is terminated in terms of the trial period, the employee is well aware that this was possible in line with discussions that had been taking place.
There are instances where a trial period cannot be included in an employment agreement and instances where it is no longer enforceable. These include:
If the applicant has worked for you in any form whatsoever before, whether it be as a relief milker, school work experience, holiday job, some form of seasonal labour.
If the applicant has worked for you before, then a 90-day trial period cannot be in place.
If the employee starts work for you prior to signing the employment agreement, then the trial period clause is invalidated. So do not accept an offer by someone to do a few ‘‘free milkings’’ (or anything similar) with you so you can see how they work before you hire them as this invalidates the trial period.
If you get the applicant to sign the employment agreement without them having had time and opportunity to take it away and seek independent advice and also if it is not explained in advance that a trial period will be a part of the terms and conditions of employment.
Trial periods are an excellent tool to help protect the employer and a genuine and capable employee should have no fear of them. They simply need to be actioned correctly.
If you need help with this or anything else in the human resources area on farm, get in touch with me at CooperAitken Ltd, my direct line is 07 9022 838, email john@ cooperaitken. co.nz.