Trial Periods - a handy tool or a double edged sword?
Employers and new employees may agree to a trial period of up to 90 days in which the employer can dismiss without fear of the employee claiming it was unjustiﬁed.
Sound simple enough? Trial periods have been touted as a “get out of jail free” card for employers, but unfortunately for many employers they have created more problems than they have solved.
In Parkes v Squires Manufacturing Ltd the employee agreed to a trial period orally but not in writing until after she had started work. The employer didn’t sign the agreement until after it dismissed her. The Authority decided the trial period was ineffective because it needed not only to be agreed to but also signed in writing by both parties before Ms Parkes started work.
In another case (Hart v 32 Gems Dental Care Ltd), a trial period was agreed to,recorded in the employment agreement and signed by Mrs Hart. The problem came about because the employment agreement said that the trial would start on the 9th of February 2011 (Mrs Hart’s scheduled ﬁrst day) but Mrs Hart actually started work on the 8th. This rendered the trial period ineffective because Mrs Hart was not a new employee when the trial began.
In Wilson v Promotional Systems Ltd, the trial period was ineffective because it didn’t state that if dismissed, Ms Wilson couldn’t pursue an unjustiﬁed dismissal claim. The fact that the employer also miscalculated the days and dismissed her on the 91st day didn’t help either.
In each of these cases, because the trial period was ineffective, the Authority scrutinised the dismissals and considered whether the employer could justify the reason and way it dismissed their employees. The employers were each ordered to pay between $5000 and $7500 to their employees in hurt and humiliation, along with lost wages of up to $8,000. Keep in mind that these are ﬁnancial awards to employees who have (generally) worked less than 90 days for their employer. Consider also that they were potentially eligible for reinstatement…
If you have queries about a 90 day trial period, your Business Central consultant or solicitor can help.