90-day Trial Period and what you need to know

The 90-day Trial Period may be one of the most commonly misunderstood – and therefore misused – clauses in an Individual Employment Agreement.

A trial period offers the employer the opportunity to terminate the employment agreement within the first 90 calendar days if the employment is deemed to have not worked out.

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If such a decision is taken, the clause offers protection from the employee successfully taking a Personal Grievance against the employer for unfair dismissal.

It is very important to make sure that you have done everything correctly if you are planning on invoking a 90-day trial clause termination. Many employers get this wrong and it costs them dearly both financially and in time and stress. Some important points to consider include:

  • This clause must be included in the written employment agreement and needs to be negotiated in good faith like all other clauses of the Agreement
  • The proper trial period clause must used – this is NOT the same as a 3-month probationary period clause, so be aware if you are using an old contract as a template.
  • The wording is quite specific and there are a number of details that need to be in this clause, including when the 90 days actually start
  • The employment agreement must be given to the prospective employee with enough time for them to seek advice before the start date
  • Only new employees can be given a 90-day trial period – anyone who has worked for the employer before, even in a different role or as a contractor will not be eligible
  • The employee must sign and return the employment agreement before they start work – even if they return it during their lunch break on the first day they would be deemed to no longer be a ‘new employee’! For this reason, if they turn up on the first day without their signed contract, you are strongly advised to send them back and ask them to begin the following day

The Employment Relations Authority is taking a very hard-line approach in its rulings on most 90-day trial cases brought before it. They insist that the Law is followed in its entirety whenever an employment has been terminated using the 90-day trial.

EIPM can help

  • We can help you assess your risks before you decide to go ahead and terminate an employment by using this clause and help you go through the process if necessary too.
  • We can review your employment agreement to make sure it contains the correct clauses that allows you to make use of a 90-day trial period
  • We can help you put in place processes to ensure that all your new employees know what is expected of them and how they are progressing throughout that initial period of employment

 

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Give John a call on 021 074 4610 or email: [email protected]

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