What Is A 90 Day Trial Period? And How Does It Work?

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An Employer can employ a new employee for a period of up to 90 days on a trial period under the following conditions:

  • The person must be a New Employee, no previously employed by the Employer/Company.
  • The trial must be agreed upon in the written employment agreement before the employee starts work.
  • If the trial period is valid the employee is not able to take a personal grievance for unfair dismissal if they are dismissed during the trial period.
  • A Notice Period still needs to be specified in the Employment Agreement and must be adhered to or the notice should be paid out.

The Employee MAY still be able to take a Personal Grievance against the Employer if the Employer doesn’t meet the above criteria.

 

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Even if you’ve got a 90-day trial period in your agreement, getting fired shouldn’t come as a surprise!

Your employer still has an obligation to ensure that you have the tools and equipment to do your job, that they provide any training or coaching that is appropriate to ensure you’re successful in your role, that if there are issues or concerns with any element of your employment, that they’ve raised them with you and given you the opportunity to rectify any concerns.

We find that more often than not employers are breaching their obligations in relation to how they treat their employees when there is a 90-day trial provision in the agreement. There’s a good chance that your termination may be unjustified if the provision in your agreement is found to be invalid. We can have a look at your employment agreement and talk you through a potential course of action.  If in doubt give us a call on 0800 669 466

90 Day Trial Period

The 90 day trial period is a period when an employer can dismiss the employee without the employee being able to raise a personal grievance for unjustified dismissal.

If you have been dismissed during your 90 day trial and you want to know if it’s legal or fair give us a call. We will check it for you.

It’s complicated:

The Trial Period is not an automatic right of employers, it must be done correctly: If an employer wants to hire someone for a trial period it must be set out in writing (usually as a clause in the employment agreement).  The employment contract must be signed by both parties before the employee begins working for the employer. If the employer decides to dismiss the employee they must give notice of dismissal to the employee before the end of the trial period: (even if the dismissal does not actually happen until after the trial period ends). An employee working on a trial period is entitled to the usual minimum employment rights e.g. to be paid for work they have done, sick leave, paid public holidays. When the trial period finishes, unless the employee has been dismissed they become a permanent member of staff.

90 Day Trial Rules

– The worker must be a new employee. – There must be a written employment agreement that contains a trial period clause. – The trial period clause must comply with the requirements of the Employment Relations Act 2000. – The agreement should state an official start date for a 90-day trial period. – The employment agreement must be signed by the worker before they start work. If the worker starts at 9am and their agreement is signed at 9.05am on the same day, the trial is invalid. – The worker must have had time to get independent legal advice on the employment agreement. – And if required, notice under the trial period must be given within the 90 days.

I’m employed under a 90 day trial period. Can my employer fire me within 90 days even if I haven’t done anything wrong?

As long as the employer gives you notice of dismissal within the trial period they can dismiss you without consulting with you beforehand and for any reason. You can not bring a personal grievance against the employer in relation to the dismissal.  But, you can bring a personal grievance claim based on other grounds such as discrimination, harassment, or to recover unpaid wages. Aside from the employer’s ability to dismiss you you should not be treated any differently from any other employee.

If the trial period isn’t going well and the employer decides to dismiss the employee, they must give notice to the employee that they will be dismissed.

The notice:

  • must be the amount of notice in the employment agreement. If the employer doesn’t give the employee the right amount of notice then the trial period is invalid and the employee will continue to be employed (or if they were dismissed, they could bring a personal grievance for unjustified dismissal). For example, the employer can’t tell the employee that they are dismissed effective immediately if there is a 1 week notice period in their employment agreement.
  • must be given within the trial period, even if the actual dismissal takes effect after the trial period ends. For example, if the trial period is 8 calendar weeks and the notice period is 1 week, the employer must give notice to the employee before the end of the eighth week, even though the employee won’t leave until the end of their notice period.
  • doesn’t have to have reasons for the employee’s dismissal.
As long as all the 90 day trial rules are followed the employer is not required to give reasons for the dismissal.

Check your employment agreement to confirm there is a trial period clause.

Unless it’s in writing and signed by both employer and employee before the employee starts, the trial period isn’t valid.

If you are an Employee and have been dismissed under the 90 day trial period and you are not sure it’s fair contact us and we will check your rights.

sources: Citizens Advice Bureau, stuff.co.nz,

Call us on 0800 669 466 and let us connect you with the right people and processes to help or email us using the form provided below.

Dismissed During your Trial Period?

DISMISSED IN YOUR TRIAL PERIOD?

Both employers and employees have rights under the trial period law

Can you still have a case for unjustified dismissal if you are terminated under the 90-day trial period?

If your employer gave you an agreement but didn’t tell you there was a 90-day trial provision, (depending on the circumstances) – you may be able to raise a claim for unjustified dismissal.

If you started work before you signed an agreement (which contained a 90-day trial provision) – you may be able to raise a claim for unjustified dismissal.

If your employment agreement fails to appropriately specify when your 90-day trial period started – you may be able to raise a claim for unjustified dismissal.

* There is a catch though – if you believe you have a claim – you need to ensure you raise it no later than 90 days after the termination of your employment.

So if you’ve been terminated under the 90-day trial provision in your agreement, give one of the team at WorkLaw a call  on 0800 669 466 to have a look at your agreement and let us see what we can do to help, or email us via our contact form.

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When is a redundancy not a redundancy?

As awful as it sounds, the closer we get to Christmas the more and more we hear about organisations needing to make the tough calls about the structures and resourcing that they require to see them be successful in the coming year.
 
There’s never a good time to have to make people redundant, but when it’s done right (sensitively, for genuine reasons, fairly and transparently), it does make a difference on how exiting employees view (and talks about) their organisation in the future.  
 
In New Zealand over recent years, there have been ebbs and flows in terms of the level of interference the government has had in decisions made by organisations when it comes to redundancy processes and the results of those processes. 
 
However, recent decisions in both the Court of Appeal and the Employment Court suggest that there is much closer scrutiny of organisational restructures with the following key elements being identified as critical to an organisation’s success in running a good process and staying on the right side of the law:
 

1. Substantive justification. 

 
This means that the employer must be able to establish that a position is genuinely surplus to its requirements (based on clear evidence and ideally presented to the employee at the time of the proposal), and that it is not a change being implemented for any other reason (i.e. to exit a problem employee). 
 

2. Procedural fairness. 

 
This means that the employer must follow a fair process in implementing the redundancy (and this is covered in s 4 of the Employment Relations Act and implied obligations of good faith) which includes:
 
  1. Consultation the employer must consult with all employees impacted by a proposed change. This consultation needs to be genuine and all feedback received as a result of the consultation needs to be given real consideration prior to the organisation making a decision on how to proceed;
  2. Consideration of alternatives – these include redeployment and transfer, and should be genuinely considered prior to making an employee redundant.
  3. Fair selection processes – where an organisation is proposing to have more employees than roles available, it must undertake a fair selection process. This includes the use of objective selection criteria (based on the requirements of the remaining roles) and should (ideally) be given to the candidates of the roles prior to being finalised to ensure they understand which criteria they are being assessed against.
  4. Informing the employee of the outcome – ideally this occurs in a face to face meeting, and should occur ahead of anyone else in the organisation becoming aware of your employee’s situation.
  5. Notice and redundancy compensation – making sure that any payments made to your employee are in line with the requirements as outlined in their employment agreement. 
 
I’ve detailed above what an organisation needs to do in order to run a great restructure process – but my post wasn’t called “how to run a great restructure”!
 
I asked the question “when is a redundancy not a redundancy?”
 
I suspect for many organisations, it’s where they have a challenge with an employee and they think that perhaps a restructure might be easier than managing performance.
 
Or the organisation thinks it might be easier to do a restructure, especially where there are no substantive disciplinary issues that would form the basis for a termination. 
 
For small organisations without an HR function, a restructure might seem like something to cure all ills.
 
Let me stop you there!

Organisations will get into just as much trouble from a poorly conceived restructure as a badly run / unsubstantiated disciplinary process.

 
The result will be exactly the same – an employee claiming an unjustified dismissal
 
I understand that getting restructures and redundancies right can seem like a herculean task and the likelihood (and cost) of getting it wrong, is very scary indeed! 

Sometimes, the best thing you can do for your organisation, is admit that it’s not your skill set and ask for help!

We can help you design and execute a seamless, end to end restructure process that ticks all the boxes and mitigates the risks for your business.
 
A good process, executed fairly, can make the difference between losing the trust and confidence of your team or ensuring that your business is set up for future success. 
 
Genuine restructures, while difficult, if communicated appropriately and sensitively, will more often than not trigger understanding from those most impacted.
 

If you’re looking to kick off a restructure process and need some help, call us on 0800 669 466 and let us connect you with the right people and processes to help or email us using the form below. 

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EXIT PACKAGE

When an employment relationship has broken down, an exit package is often used to end the employment contract. They can be initiated by either the employer or the employee.

Exit packages are attractive to both employer and employee.

Exit packages allow the employer to bring the employment relationship to an end quickly, easily and without a lot of delay and expense.

There are many reasons for an employee to need to leave a job. Sometimes it’s the arrival of a new CEO who wants to place their ‘own people’ in pivotal roles. Suddenly responsibilities change, new middle managers appear and employees find themselves doing the same job but with less status. Alternatively, an employer may genuinely need to restructure a business, resulting in redundancies, or the business may be in trouble and the employee able to see the writing on the wall.

Sometimes you can tell you are no longer wanted or needed through no fault of your own. An Exit Package is a much more attractive option than simply resigning.

Whatever the reason it’s always best to make a dignified exit.

Many problematic employment relationships do not end by dismissal or resignation, but through the negotiation of an exit package.

The perception comes from dissatisfaction in the workplace for the employee, performance issues for the employer and most often when a disciplinary meeting takes place. An exit package is attractive to both parties when the employment relationship has no real future.  

Typically, such a package will contain some financial benefit for the employee and possibly a reference. The employer can have the assurance that any grievances or claims arising out of the employment relationship (existing or yet to be raised) are at an end.

Our advocates can recognise the opportunity for an exit package and negotiate the best possible package in the circumstances. It is always best to engage our advocates at an early stage so that this strategy can be considered and prepared together, making for the best outcome.

If you need help negotiating an exit package with your employer give us as much information as possible below or call us on 0800 669 466.

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