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.
In the last 12 months the advocates at WorkLaw have been involved in a number of Employment Relations Authority cases which have resulted in the law landscape changing in favour of those employees dismissed under the 90-day trial period clause.
It’s recognised that when 90-day trial periods were made available to all employers to include in their employment agreements it stripped employees of some fundamental rights. These rights were previously recognised in the Employment Relations Act – namely the right to raise a personal grievance for unjustified dismissal. The Act said that employees could still raise a grievance if they believed they had suffered an unjustified disadvantage – but this hurdle is often too difficult for new employees to prove and there was a low likelihood of success in raising these types of claims.
It seemed as if employers had all the power – that they could hire and fire at will.
However, it was recognised that there needed to be some balance provided and this has come in the form of the Employment Court and the Employment Relations Authority setting very clear and specific guidelines that employers must meet to ensure that the 90-day trial period in their employment agreement is valid.
The things that employers need to do are:
– Ensure that the trial periods are mutually agreed in writing, before a potential employee becomes an employee;
– Ensure that the trial provisions is provided to potential employees at the same time they receive the other terms and conditions of employment;
– Ensure that the potential employee is given reasonable opportunity to seek advice in relation to the terms of the offer of employment (including the 90-day trial provision);
– Ensure that the terms of the offer of employment are accepted (usually by signing the agreement).
However recent decisions have taken this a step further and it was recognised that employers must also:
– Ensure that the agreement clearly identifies the commencement of the 90-day trial period; and
– Ensure that the trial period does not exceed 90 days.
There are also some general good faith obligations and these can be summed up in the idea that 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.