Hoops in trial period dismissal

Q: I’ve just employed a new staff member, however it’s not working out. I went to a business seminar recently and heard I can dismiss the employee using the trial period. Is that right? A: Trial periods can be an employer’s ‘‘get out of jail free’’ card, enabling them to relatively easily dismiss an employee.

However, if proper processes are not followed, a dismissal during the trial period can also land an employer in hot water.

Trial periods were introduced by the government in 2009 and were originally available for employers with 19 or fewer staff.

However, in 2011 the availability of trial periods was extended to all employers in New Zealand, regardless of size.

The courts have given us guidance as to how trial periods must be implemented and what processes must be followed.

The result of this is that there are a growing number of hoops that an employer must jump through in order to effectively dismiss an employee.

For example, the trial period must be in writing and be contained in the employee’s employment agreement. The employment agreement must have been provided to the employee (and a signed copy returned to the employer) prior to the employee’s commencement date.

The actual wording of the trial period clause must also comply with the requirements of section 67A of the Employment Relations Act 2000. It is also important to note that trial periods are only available to be used for ‘‘new’’ employees.

This means that trial periods cannot be used if an employee is switching roles within a company or returning to work after some time away. The best advice is to get legal advice before taking any action.