Employment Relations Authority
ruling in several recent cases it was unlawful.
So what are some of the most common mistakes in drafting or implementing a trial period clause the ERA is seeing?
- The employee was not given a written agreement before commencing employment – the failure to have a signed employment agreement containing the 90 day trail period means the employee is employed as permanent staff;
- The employee has never been given a written employment agreement;
- The employer did not attempt to get the employee to sign the employment agreement prior to the employment commencing or within a short period of time from the employment commencing;
- The employee had worked for the employer previously;
- The wording in the written employment agreement does not meet the requirements of section 67A of the Employment Relations Act 2000.
Karen Radich, barrister with Clifton Chambers, advises that for a trial period clause to be valid it must adhere to the following rules:
- The trial period must be in writing and be contained in the employment agreement – s67A(2)
- The trial period clause must state, or be to the effect that (s67A(2)):
- the employee is to serve a trial period for a period not exceeding 90 days
- during that period the employer may dismiss the employee
- if the employee is dismissed during the trial period, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.
- The employee must not have been previously employed by the employer, so the trial period clause needs to be provided to a prospective employee as part of the initial offer of employment – s67A(3)
- The employer must give the employee a copy of the intended agreement – s63A(2)(a)
- The employer must advise the employee that he or she is entitled to seek independent advice – s63A(2)(b)
- The employee must be given a reasonable opportunity to seek advice about the terms of the offer of employment – s63A(2)(c).
Employers have been caught out when using the 90 day trail period in justifying dismissals with the