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90 Day Trial Changes

With changes proposed to the 90 day trial period, what other options are open to you?

If employers of 20 people or more are not able to use the 90 day trial, the probationary period is likely to be re-visited and re-instated in employment agreements as an alternative.

So, what is a probationary period?

A probationary period can be used when an employee starts a new job or is changing roles within the same organisation. It must be recorded in writing in the employment agreement. Unlike the trial period, it can be for any amount of time, provided it is reasonable and that the timeframe is included in the employment agreement clause.

During the probationary period, the employer must:

  • Tell the employee if there are any issues with their work
  • Tell them what the issues are and what good performance looks like
  • Give support and training
  • Give the employee the opportunity to improve

If there are still serious performance issues at the end of the probationary period, the employer must tell the employee what aspects of their performance were not good enough and that they intend to end their employment. The employee must have a chance to respond, and after considering this response, the employer can give the employee notice as per their employment agreement.

The employee can raise a personal grievance on the grounds of unjustified dismissal. The employee may argue, for example, that they weren’t fairly assessed, weren’t given necessary training, or there was not a good reason to dismiss.

How does this differ from the 90-day trial period?

  • A trial period can only be for a maximum of 90 days
  • The employer can dismiss the employee during the trial period
  • With a trial period, the employer does not need to give the reason for the dismissal, nor give the employee the chance to comment before deciding to dismiss
  • The employer does not need to show that they gave the employee the opportunity to improve through feedback, training and support during the trial period
  • The employee cannot bring a personal grievance for unjustified dismissal when dismissed under the 90-day trial

Having a sound process, with correct documentation, is essential to successfully and correctly using a probationary period.

90 day trial

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