Knowing and navigating the 90-day trial period

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Whether you’re on the hunt for new staff or on the hunt for a new job, employers at small organisations (19 employees or fewer) are still able to use 90-day trial periods.  

If you have more than that many staff (including part-timers and casual staff) then you can’t use the 90 day trial regime.  There are other options, such as probationary periods, but those are not quite as simple.

90-day trial period laws were introduced some years ago now and employers should have the hang of them.  However, we still see plenty of cases where employers are getting it wrong and putting themselves at risk of sizeable awards against them. Here’s what you need to know.

The basic concept of the trial period is simple. A 90-day trial provision gives employers the chance to hire new staff subject to a trial period of up to 90 days. Where an employee is serving one of these trial periods, some of the standard rules relating to dismissal don’t apply.

Trial provisions encourage employers to give job-hunters the benefit of the doubt. However, in offering this benefit of the doubt, it is arguably the employer who receives the greatest benefit. This can leave new recruits vulnerable (Unions call this the “fire at will” law) so 90-day trial period laws are interpreted very strictly.  That’s why a simple concept has a range of not-so-simple technical requirements.

Avoid the most common mistakes made by employers

Sign the agreement before starting work

If employees’ jobs are subject to a 90-day trial, they must sign their employment agreements before their first day and they must be given time to seek legal advice if desired. The reason for this is that trial periods have to be voluntary, so they need to be agreed to by both the employer and the employee before work commences.

If you have verbally offered the job, and the employee has accepted, before getting a written agreement to the employee that also may be enough to invalidate a clause.  Best practice is to make the offer in a letter with the agreement so the only way to accept the offer is to sign.

If a new staff member takes the agreement home to sign and returns it on day two, or you take a few weeks to get the paperwork sorted out, then the 90-day trial period provision will no longer be valid. Likewise, if you give your new recruit the agreement on a Friday and need it returned so that he or she can get down to business on Monday – you’ll leave the agreement open to challenge because that timeframe gives your recruit a slim chance of being able to get legal advice.

Trial periods are only for new employees

A related point is that employers can only have new employees serve 90-day trial periods. If an employee has previously worked for an employer, whether it be for a few days before the agreement was signed or whether for a few years in a different role, different department or different team, a trial period will not be valid.

Trial period provisions must be correct and in writing

Defective 90-day trial period provisions aren’t looked upon kindly by the Courts. 90-day trial period provisions must be written. The written provision must state the length of the trial period. It’s also imperative to state that the employer may dismiss the employee during this period and that the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal. There are strict wording requirements to align with the Act and we recommend taking advice on this.

Trial-period employees have the same rights as other employees

Although 90-day trial period laws make it easier for employers to dismiss staff that aren’t quite right for the job, it’s important to remember that during a trial period the employee has the same rights as an employee not serving a trial period. This means the employee cannot be dismissed without warning or without feedback and a chance to improve. On top of this, the employee is entitled to notice of the dismissal. Provision can be made for less notice to be given under a trial period than under normal circumstances, but if there’s no trial period notice provision and the agreement provides for, say, four weeks’ notice of termination, that notice must be given to the employee even if he or she is serving a trial period.

To be valid, 90-day trial periods must be implemented by the book. When they are done correctly, they can be a useful way to see if an employee is right for a role.  However, it’s easy to get it wrong so your safest bet is to talk to an employment lawyer.

Whether you’re an employer looking to put a trial period in place, or whether you’re an employee and you think your employer might have got it wrong, the team at WRMK is always happy to assist.

This article was first published in January 2016 and revised in June 2019.

Our thanks to Simon Davies-Colley for writing this article.