It’s been eight years now since the 90 Day Trial Period legalisation came into effect – so you would think that we are all well aware of the ins and outs of the law.
While a lot of businesses are using it correctly, there are still a lot of managers who have questions or misconceptions around it. We’ve outlined a brief overview of the law and where people trip up.
Please share this overview with any managers who recruit for your business, as often there can be just one or two managers who get it wrong – potentially costing your business down the track.
- The 90-day trial clause must be included in your employment agreement, and must be worded correctly to be effective. Use the standard terminology from your lawyer or the Department of Labour website, and do not change it.
- You cannot extend the trial period beyond 90 days.
- A probationary period is different to a trial period – do not combine the two clauses.
- The 90-day trial is available only to new employees, not to anyone you have employed previously – not even many years ago.
- You must have the signed employment agreement returned to you prior to the new employee commencing work. Do not get them to sign it on their first day – ask for the agreement to be returned at least a day or two before they start.
- The 90-day trial must be raised at the time of making the initial offer of employment. Always mention at the offer stage that the contract will include the 90-day trial period.
- Employees must be given a reasonable opportunity to take legal advice on the 90-day trial period prior to accepting employment.
- During the trial period the employer can dismiss the employee without the employee being able to take a personal grievance for unjustified dismissal. Other personal grievance issues may still be raised, for example discrimination/harassment, unjustified disadvantage or health and safety.
- Notice must be given within the trial period, even if the actual dismissal doesn’t become effective until after the trial period ends. You need to give notice as it states in the employment contract – for example, if it says that notice must be given in writing, then you cannot give it verbally.
Ideally, with a strong recruitment process you won’t find yourself in the position of needing to use the 90-day trial clause. However, if you are, we recommend getting legal advice to ensure you follow the right steps. For now, make sure any new employment contracts are correctly worded and that you follow the process before a new person starts.