All employers, regardless of size, may hire a new employee on a trial period lasting up to 90 days, provided the employer meets certain requirements. Prior to 23 December 2023, this was limited to businesses with 19 or fewer employees.
The purpose of the 90-day trial provision is to ensure that the new employee is the right fit for the company and vice versa.
To have a valid trial period, among other requirements, it must be specified in the employment agreement, specify a set period not exceeding 90 days, include a proper notice period, and be agreed to in good faith by the employee before the employee undertakes any work for the employer. Employees who have previously been employed by the employer cannot be subject to a 90-day trial period.
If the employee is a member of the union the employer must also ensure that a 90-day trial period is consistent with the collective employment agreement.
If the 90-day trial period is used correctly, an employee will not have a valid personal grievance claim for the dismissal.
Despite this being a relatively straightforward sounding clause that can be exercised, inappropriate or incorrect application can render it invalid and could result in an expensive personal grievance process. It is essential the employer implements and gets the process right for 90-day trial periods and probationary periods–call us for a no obligation discussion to see how we can help.
We recommend that prior to an employer dismissing under the clause, that it seeks advice to ensure that the clause is valid and can be relied upon.