I have seen many employment agreements that use confusing terminology relating to the use of trial periods and probation periods. Both are allowed and both are used to assess the suitability of that person to the role but, be aware, they each have different ‘rules’.
Probation or trial periods must be agreed by both parties prior to the commencement of employment and they must be in writing.
A probation period can be used for anyone versus a trial period which can only be used for someone who has not previously worked for the employer, in any capacity.
Trial periods are limited by 90 calendar days whereas a probation period can be any length. The length however must be deemed reasonable for the particular situation.
A key difference is that termination of employment during a probation period must follow a fair disciplinary and dismissal process however this is not necessary for a trial period. Termination can occur without following a stepped process.
Good faith must still be adhered to during both processes. In a trial period however an employer does not have to consult with the employee about the termination. They must however provide reasons for the dismissal, should this be requested.
The biggest protection a trial period offers the employer is that the employee cannot raise a personal grievance for unjustified dismissal. The employee however can raise a personal grievance on other grounds such as discrimination, harassment or unjustified disadvantage.
Trail periods appear to be a quick, simple and risk free process to terminate and employee’s employment. This is not the case.
For a trial period to apply, the agreement must state:
- That the first 90 days of employment the employee will serve a trial;
- That the trial period commences from the first day of employment;
- During that period the employer may dismiss the employee; and
- If the employer does so, the employee is not entitled to bring a personal grievance or legal proceedings in respect of the dismissal.
Employers are advised not to hire with the sole view to using the trial period to terminate an employee’s employment if it goes wrong. Good recruitment processes, a thorough induction and training programme and open and honest communication will ensure the employment relationship is productive and fulfilling.
If you would like to discuss your specific needs or require assistance with any of your ‘people’ issues, please contact me now and book a 30 minute free confidential consultation.