90 Day trial period start date not necessarily first day of work

Employment Law alert

The Employment Relations Authority (Authority) has released a decision regarding 90 day trial periods which will have an effect on valid trial periods for employers moving forward.

In multiple decisions regarding a number of employees from an Early Childhood Centre, the Authority found that an employer could not reasonably infer that a 90 day trial period began on the first day of work if an employment agreement did not contain a specific commencement date for the trial period.

Section 67A(2) of the Employment Relations Act 2000 states:

(2) Trial provision means a written provision in an employment agreement that states, or is to the effect, that—

(a) for a specified period (not exceeding 90 days), starting at the beginning of the employee’s employment, the employee is to serve a trial period;

The employees claimed the 90 day trial provision in their employment agreements did not meet the requirements of the section above as the employer did not specify the starting date. Rather, the employment agreements provided:

15.0 Trail Period

15.1 A trial period will apply for a period of ninety (90) days under s67A of the Employment Relations Act 2000, to assess and confirm the suitability of the Employee for the position.

The Schedule to the employments agreements stated: “the commencement date of employment is: 22 November 2015”. The employer, on the other hand, asserted it was clear the parties intended the trial period to commence at the beginning of employment, and that there was no other date on which the trial would reasonably begin.

The Authority did not accept this submission as Clause 15 did not make any cross reference to the commencement date. It was found that the employment agreements could not reasonably imply that the 90 day trial starts on the first day the employee works for the employer. The Authority thought there would be a number of circumstances in which parties may agree that the 90 day trial does not start on the commencement date of an employee’s employment, for example, a lengthy induction, an overseas temporary placement, or undertaking offsite training or secondment work for an external entity until the work the employee is employed to do is available.

The Authority thought it highly relevant that dismissal during a valid 90 day trial period precludes an employee from bringing a personal grievance so it should be done correctly. The failure of Clause 15.1 to specify exactly when the trial period began meant the employees were not technically advised of when their trial periods started.

Our advice to employers would be to amend future employment agreement templates to include a specific date. For example, we include “The Employee must serve a satisfactory trial period not exceeding 90 days starting from the Date of Commencement set out in Schedule 1 of this Agreement”.

Please do not hesitate to contact a member of the Employment Relations team if you are not sure whether your employment agreement is compliant.

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:

Employment: Andrew Shaw, Fiona McMillan, Julia HurrenJackie Behrnes, Siobhan Rastrick, Gwen Drewitt; Holly Swadel
Immigration: Mark Williams, Rachael Mason, Nicky Robertson, Hetish Lochan, Daniel Kruger, Lavinia Shanks, Winnie Chen, Caroline Edwards, Holly Swadel, Ken Huang
ACC: Andrew Shaw
Health and Safety: Andrew Shaw, Julia HurrenFiona McMillan, Gwen Drewitt

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