Human resources is all about those grey areas; assessing risk and giving advice on navigating between the black and white of employment law. The test of reasonableness and the requirement to act in good faith are two key examples of how important it is to have expert advice.
You have engaged a new employee, the person has only been with your team for a couple of months but things aren’t looking good. Unfortunately the employment agreement wasn’t signed until after the employee started working with you, and you haven’t made time to give feedback on their performance.
The Employment Relations Act (black and white)
An employee cannot bring a personal grievance unless they can show an unjustifiable action by their employer, but this doesn’t define what an unjustifiable action could be.
- Section 67A (C) states “the employee is not entitled to bring a personal grievance”
- Section 67B (3) states “Neither this section, or a trial provision prevents an employee from bringing a personal grievance or legal proceedings on any of the grounds specified in Section 103 (1, B-G).
- Section 103 (1B) states “…affected to the employees disadvantage by some unjustifiable action by the employer”
So what are the grey areas in this situation?
Even though the law is clear that an employee can’t raise a personal grievance, there is no mechanism to prevent this from happening.
- The lack of feedback and performance management gives your employee very little time to rectify mistakes
- Failure to sign an employment agreement prior to starting work means that there is a defence that the the trial period is not valid because the employee has been previously employed (even if only for one hour)
How do you minimise the risk?
Quite simply, with empathy and understanding. People raise personal grievances because they are hurt, angry or upset, not because they understand employment law.
- Be clear before employment commences that the 90-day trial period will apply to their employment
- Make sure all employment agreements are signed before anyone starts work
- Talk to your team soon as concerns are raised about an employees performance – don’t put it off
- If your employees level of performance doesn’t improve, make it very clear that you are considering trial period termination
- Be sure that your trial period requires a shorter notice period than normal; more often than not you will pay-out your employee in lieu of notice
- Call in an expert to assess risk and review your processes
Employment law can be complex, but don’t resort to expensive lawyers, at HRtoolkit you can download plain English documents covering every aspect of your employment relationships. Subscribe to our Employment Toolkit here.