DaltonPlan® Business Information Newsletter
Setting the Benchmark for Business Performance ● Issue 124 - 2017


Avoiding the pitfalls of 90-day trial periods
I've come across this issue a bit lately so I wanted to share with you what I have encountered. I always seek advice from experts on these matters. If you want expert advice contact Tony McKone from McKone Consultancy Ltd 027 698 2123, he's great to work with.

The ability to hire employees and dismiss them within 90 days without the risk of being taken to court for unjustified dismissal seems straightforward enough but employers keep getting it wrong time and time again, experts say.

A 90-day trial period allows an employer to dismiss a worker without the risk of having a personal grievance brought against them for unjustified dismissal.

Rather than it giving employers a way to take advantage of people, my clients say that the trial period gives them the chance to find the most suitable person for the role.

"It's the most effective way of testing whether candidates fit within the company - how they integrate into the role, work within a team, their reliability, skill set and performance," they say.


The three biggest mistakes made are:
- Employers not getting paperwork signed by both parties before the worker's start date
- Employers trying to extend the trial period
- Employers are not always aware of the finer legal details. For instance, not stating a notice period during the 90-day trial period, as an example only, "During the probationary period the employment may be terminated by either party on giving one week's written notice. At its discretion the Company may give pay in lieu of notice. No notice shall be required in the case of summary dismissal".

Trial periods can only be for "new" employees, not for someone who has worked for the same employer in a different role. This also includes recent employees who did not sign their contract until after they started working.


Case story
In one particular case, the Employment Relations Authority (ERA) ruled in favour of a coffee cart worker whose employer dismissed her under the 90-day trial period provision.

The employee worked for the first 10 days or so without having signed an employment contract, despite repeatedly requesting it.

Both the employee and her employer eventually signed the contract but two months later, the employee called in sick on a Friday night. The employer dismissed her in accordance with the 90-day trial period in her contract after not being able to reach her over the weekend.

The ERA found the employee was already an employee by the time she signed her contract, so the 90-day trial period did not apply.

She was also not told her poor timekeeping and unreliability might result in her termination and there had been no formal meeting to discuss those issues.


Experts say
Experts say that employers need to get on top of all of the issues and legal details, otherwise it could end up in a long, drawn-out, expensive court case.

In the case of the coffee cart worker, the employee was awarded more than $10,000 in compensation.

Experts say that there are a few finer details employers need to understand:
- The trial period must be in a written employment agreement. It is not enough to refer to the trial period in an offer letter and have the employee counter sign the letter.

- The wording of the trial period has to meet all the criteria of the law in terms of explaining the existence and effect of the trial period to the employee.

- Employers who want to terminate a worker's employment under the 90-day trial period must give that staff member notice before the end of the trial period.

- The correct notice must be given as prescribed by the agreement. Generally this requires the employer to set out in writing that the employee's employment is being terminated under the 90-day trial period, and when that notice will take effect.

- The 90-day trial period does not stop a worker from bringing other personal grievances like unjustified disadvantage, sexual harassment and discrimination.


Experts also say
Experts also say that it is advisable for employers to tell workers about any performance concerns before deciding whether to dismiss them under the 90-day trial period.
They say, "Although there is no obligation to provide these employees with the reason for their dismissal, we normally recommend that employers do so, to avoid employees reaching the conclusion that their employment has been terminated for some other, potentially discriminatory reason, such as because of their race, religion or gender."


Contact us
If you have any questions after reading this information, go to Contact Us on our website www.DaltonPlan.co.nz and type in your request.

By Dean Dalton DBA
Director, DaltonPlan® Business Action Planning Limited