Getting it Right: 90 Day Trial Periods
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Use of the 90 day trial period was extended to all employers in April 2011. The trial period increases the rights for employers by allowing them to terminate employees without the employee claiming unjust dismissal. Misuse of the trial periods can cause PR disasters for the employer or organisation involved. We’ve outlined some key tips to keep you on the right track and taken a look at the Blackmore v Honick case to see what went wrong.
Quick tips for Employers
1. Employers must inform candidates of a trial period at the initial offer stage.
2. The trial period must be agreed upon by both parties in writing before the employee is engaged.
3. Provide the employee with a copy of the employment agreement (containing the trial period) at the same time as the offer for employment is made.
4. Advise the employee that the offer can only be accepted by signing and returning the agreement.
5. Inform the employee of their right to seek advice, and allow time for them to do this.
6. Open the channel for communication- let the employee know that they have the option to discuss the employment agreement with the employer.
7. Employers should genuinely take any requests made by the employee into consideration, however, they’re not required to make changes.
8. The trial period cannot be longer than 90 days, and a shorter period may be agreed on between employer and employee.
9. The trial must commence from the start of employment and any agreement signed after the employment has begun is invalid.
To avoid scenarios like the Blackmore v HPL case below, read up on employment law changes and ensure that you understand the laws correctly. For more information or advice head to http://www.dol.govt.nz/workplace/knowledgebase/item/1517, or drop us a line at firstname.lastname@example.org
The Case of Blackmore v Honick Properties Ltd
Mr Blackmore was the successful applicant of a position with Honick Properties Ltd (HPL). He was formally offered (and accepted) the role in a letter outlining the terms and conditions of employment, salary and expected start date. HPL did not mention the use of a trial period in their initial offer. Mr Blackmore began work at HPL at 7am on a Monday, roughly a month after his offer. He was approached by his new employer at 8am and asked to sign his Employment Agreement which contained a trial period provision. Mr Blackmore signed the agreement despite his concern over the trial period. He was not advised of his right to seek advice before signing, and there was no discussion over the agreement or the trial period between Mr Blackmore and his employer. Mr Blackmore was later dismissed during his trial period and raised the issue of unjustified dismissal- something trial periods aim to prevent.
Blackmore argued that his dismissal under the 90 day trial period was unjustified and invalid as at the time of signing his Employment Agreement he was ‘previously employed’ by HPL. Blackmore’s formal acceptance via email was considered the beginning of his employment (but not his trial period) with HPL, with the court ruling in his favour that he was indeed, an existing employee. In the event that the court had not ruled in Blackmore’s favour on pre-existing employment, they found that he was already employed as of 7am, 1 hour prior to his employer presenting him with the Employment Agreement.
Can you identify what went wrong in the Blackmore v Honick case? You can read the full case here