Restrictions on the use of the 90-Day Trial Period from 6 May 2019

by | Apr 11, 2019 | Disciplinary & Dismissal, Employment Agreements, Recruitment

If you are a company with less than 20 employees – there is no change.  You are able to continue using the 90 day trial period with confidence, with one note of censure – your 90 day trial period clause must be compliant with the latest legislation.  Unfortunately, we have had several companies phone us wanting to enact a 90-day trial termination, but when we review their 90-day trial clause it is not legally compliant.  Don’t get caught out, ensure you have a proper trial period clause.

Companies with MORE than 20 employees – If your trial period starts on or before 5 May 2019 it will continue to apply.

From 6 May 2019 if you have more than 20 employees – you are no longer able to use the 90-day trial clause.  You will have to alter your employment contracts:

  1. You will need to remove the 90-day trial clause from your employment contracts by 5 May 2019.
  1. From the 6 May employers can use the probationary period clause in their employment contracts to assess new employee’s skills, fit and their skills and performance.

Under a probationary period, you will need to follow a fair process before potentially dismissing an employee.  Unlike a trial period, an employee who is dismissed in accordance with a probationary period clause can raise a personal grievance or other legal proceedings in relation to the dismissal.

Therefore, employers need to actively manage the performance of their employees and ensure that any references to procedural elements contained within the employment agreement (such as a monthly review, or a review at the completion of the probationary period) are followed as agreed.

There is no fixed period for a probationary period and can be of any length but should not be too lengthy. A period of 3 months would be normal.  The probationary period clause should be inserted in place of the trial period from 6 May 2019.

Need a probationary clause for your employment contract?

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