The Employment Relations Authority is seeing more and more personal grievance claims where employers have been found responsible for an unjustified dismissal due to their poor application of the 90 Day Trial Provision as contained in s67A(2) of the Employment Relations Act.
For employers to have a valid opportunity to terminate an employment agreement under this provision, it is critical that the following conditions are met:
Strictly applies to "new" employees only
- A fully signed employment agreement must exist before an employee commences work (even for a minute)
- The employment agreement must include a trial provision as stated in S67A(2) of the Employment Relations Act
- Failure to fully comply with any of the conditions above render any such provision deficient and non-enforceable
Good faith obligations still apply under this provision; therefore it is advisable to have raised any issues genuinely and seriously with the employee prior to giving notice of the intention to terminate the employment agreement. Repetition of unacceptable behaviours and attitudes should be directed to the employee for their explanation and reaction. Minimising the element of surprise to the employee is strongly recommended.
The employer needs to be prepared to provide an explanation or reason as to why the decision was made to terminate the employment agreement if requested.