Trial and probationary periods can be used to make sure that an employee can do the job. These must be agreed in the employment agreement. A probationary period cannot be applied after a trial period. These shouldn’t be used instead of a proper recruitment process. Trial periods and probationary periods are used for similar reasons but have different requirements and effects.
Trial Period
A Trial period must:
Be an express written term of the employment agreement
State that the employee may be dismissed within a trial period is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal
Be no longer than 90 days
Only applies to new employees
Trial period are currently limited to employers with less than 20 employees.
A duty of good faith still applies but no formal process is required.
A trial period clause places fair greater restriction on an employee’s rights. This clause, if applied correctly, can prevent an employee from bringing a personal grievance for unjustified dismissal at the end of a trial period. Notice of termination under the trial period must be in accordance with the terms of the employment agreement. If the requirements are not met, the trial period will not be effective. This means that the dismissed employee will have grounds for a valid personal grievance.
To rely on a trial period to dismiss an employee, the employee must have been aware of the trial period and had a chance to get advice before signing the agreement.
A trial period enables the employer to dismiss an employee without going through the typical dismissal process like poor performance or misconduct.
A common misconception is that while employees are “on trial” that they are not entitled to the same employment rights and entitlements as the other employees. This is not true. A trial period only affects how you can dismiss an employee. An employee who is “on trial” can still bring a personal grievance for other issues such as discrimination or harassment.
Probationary periods
A probationary period can be used to find out if an employee new to a job or for employees who are changing jobs with the same employer. Probationary periods must be in the employment agreement.
A probationary period:
Can provide a fair opportunity for an employer to assess an employee’s skills
Can let a person new to a job show that they have the skills to do the job.
Can be used when an employee starts a new job even if they already work for the employer but are changing jobs.
Must be recorded in writing in the employment agreement and clearly state that there is a probationary period and how long it will last. The period can be any length of time, but it
must be recorded in the employment agreement.
It must be paid; employers can’t use a probationary period to get work done for free
It doesn’t limit the rights and obligations of the employer or the employee
Must be negotiated and used in good faith
Must be a reasonable length of time considering all the relevant circumstances of the employer, the employee, and the job.
A probationary period cannot be applied after a trial period.
During the probationary period
The employ must follow a fair process during the probationary period. This includes:
Telling the employee if there are any issues with their work and if there is a chance that their employment might not be continued after the probationary period ends.
Telling them what these issues are, and what good performance in this area looks like
Giving the employee support, and ongoing and appropriate training
Giving the employee every opportunity to improve. This means that the employer should be giving feedback, support, and training throughout the probationary period so that the employee knows that there are issues and giving them the opportunity to improve.
It is good practice for employers to tell an employee on a probationary period when they might expect to receive training and feedback at the start of their employment. The employer must follow through on any commitments made.
In some situations, the employer may choose to remove a probationary period and confirm employment early. If this is done, it must be in writing as it is a change in the employment agreement.
At the end of the probation period
If the work is going well then as an employee, you and your employer do not need to do anything to continue your employment. At the end of the probation period, your employer:
Won’t dismiss you
Your probation period ends
Your employment continues automatically on your existing terms and conditions of employment but with no probation period.
If the work hasn’t gone well, an employer cannot just tell the employee to leave their job at the end of the probation period. The employee must have been assessed fairly and if their work was not good enough, they must tell the employee why and that they intend to end their employment.
The employer must give the employee an opportunity to respond. If, after considering any response, the employer decides to end the employee’s employment they must give the employee notice in their employment agreement.
If, as the employee, you are dismissed at the end of a probation period, you can raise a personal grievance on the grounds of unjustified dismissal, for example:
If you think your employer didn’t have a good enough reason to dismission you
If you were not given appropriate advice or training on how to do the job effectively, or
If you were not fairly assessed by your employer.
Disclaimer: The content of this article is general in nature and no intended as a substitute for specific
professional advice on any matter and should not be relied upon for that purpose.