The 90-day trial period has been part of NZ’s employment landscape for a few years already and it has been used by countless employers to end the employment of new recruits who would have not worked out for one reason or another. Thankfully there are some who have done this successfully and without any repercussions. However there are many others who have found out the hard way that dismissing someone is never simple, even when they thought they were meant to be protected by the Law itself!
The 90-day Trial Period provision states, in sections 67A and 67B of the Employment Relations Act, that if an employer dismisses an employee within the first 90 days of employment, the employee cannot raise a personal grievance for unfair dismissal, although they can still raise a grievance on other grounds such as discrimination or unfair disadvantage. In a nutshell this means that the employer would not need to go through the same process when dismissing someone on a trial period as they would for any one else. The employer could essentially dismiss the employee in a manner and for reasons that would not be seen as ‘fair’ for any other employee.
Some of the Members of the Employment Relations Authority have made it very clear that they do not like this provision and are looking at every minute detail to be able to find in favour of an employee who challenges a 90-day trial dismissal. They see it as a means for the employer to by-pass good faith and natural justice and have expressly said that if an employer wishes to make use of their legislated right to deprive an employee of the right to take a Personal Grievance for unfair dismissal, then that employer would be well advised to ensure that they follow that same Legislation to the letter! The devil really is in the detail and new details seem to come up every time a 90-day trial case is brought in front of the Authority.
CLICK HERE for some important tips to be aware of when using the 90-day trial period.
We all know that recruiting and inducting a new employee and then training them to perform to an acceptable level is very expensive and time consuming. As an employer you should always aim to get this right and make good use of those initial weeks of employment to build trust and faith in the new employment relationship and to clearly convey your likes and dis-likes and your targets and expectations to your new team member.
Just like a using a parachute, the 90-day trial period should only be necessary to use as a last resort – always be certain to have one but also make really sure that all your knots are tied properly and your lines are strong enough if you really wish to trust it!