Since 1 April 2011, the 90-day trial period has been available to all employers regardless of the number of employees.  Employers now have the opportunity to hire new employees subject to a trial period of 90 days or less. In the event that an employee is dismissed during the trial period, they are prevented from taking a personal grievance for unjustified dismissal.  However, employees can still still take a personal grievance on other grounds.

90 Day Trial Period Controversy

There have recently been two pre-employment ‘trial’ trial period cases before the Authority, which seem to have had conflicting determinations made.  Yet again, more questions have been raised regarding the interpretation of the 90 day trial period legislation, section 67A of the Employment Relations Act 2000.

Pitfalls 90 Day Trial Period Employers Beware

The 90-day trial period has been extended to all employers regardless of the number of employees.  All employers can now hire new employees on a trial period of 90 days or less without the risk of the employee taking a personal grievance for unjustified dismissal (they may still take a personal grievance on other grounds) in the event that the employee is dismissed during the trial period.  This all sounds wonderful in theory, but what is being discovered through the Courts is that it’s not as easy as it sounds.

Dotting Is Crossing Ts 90 Day Trial Period

Speculation over the 90-day trial period and whether it is valid or not has come to light again with a recent case out of the Employment Relations Authority, see: Clark vs Lighthouse ECE Limited [2016] NZERA Auckland 281.

Unpaid Pre Employment Test Signing Employment Agreement Part Trial Period

A recent determination from the Employment Relations Authority has found a voluntary, unpaid pre-employment test did not form part of a trial period.  The employees personal grievances for unjustified dismissal and disadvantage failed.

Employee Valid Trial Period Wins Disadvantage Claim 2

Ms Balmaceda was employed by Amphibian Swimming Academy Limited (the respondent) as a swimming instructor on 10 June 2013 until she was dismissed on 15 August 2013 pursuant to a 90 day trial provision in her employment agreement. Ms Balmaceda filed a personal grievance alleging unjustified action by the respondent which caused her disadvantage. The unjustified action was the refusal to pay her wages.

Disciplinary Reminders

Never take a prepared letter into a disciplinary meeting as it shows complete pre-determination of the outcome, which could result in an unjustified dismissal.  The only exception to this is during a 90-Day Trial Period in which case it is OK to bring a prepared letter confirming the dismissal.  For more information on the correct disciplinary process, contact the office.

New Bill Legislation For Fairer Workplaces Proposed

The Government introduced a new Bill on 25 January 2018 which intends to amend the Employment Relations Act 2000 with the aim of providing greater protection for employees and workers. The Government believes there is a need to restore fairness and balance into New Zealand workplaces. The changes are as expected and include restrictions imposed on the use of the trial period by businesses employing more than 20 employees, and among other things, restoring statutory rest and meal breaks.

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