If you have recruited staff, you may have employed a new staff
member, only to find that their skills and experience are
insufficient for the job. Perhaps your star recruit is less than
perfect for the role, even though they presented so well in the
interview. You may be left questioning your hasty decision to hire,
or the genuineness of a referee.
So, it's understandable that a statutory 90 day trial period
is an attractive option if you're hiring staff. Employers
relying on this trial period can notify staff of their dismissal
within 90 days of employment, without facing a personal grievance
over their dismissal. However, staff can raise personal grievance
claims on other grounds (including discrimination, harassment or
unjustified disadvantage), or claim that you have breached your
duty of good faith.
Much debate surrounds 90 day trial periods. Are they legally
enforceable? Can you dismiss staff on the 91st day? What happens if
you haven't told staff that they need to improve?
It is useful to know the legal implications of 90 day trial
periods. Keeping to legal requirements can save you from the
headache of dealing with personal grievance claims.
While employers of all sizes can rely on trial periods to
dismiss new staff, the Courts have made it clear that the criteria
around the trial period is strictly applied. There have been many
instances of employees successfully claiming that trial periods are
invalid. An employee, who had been employed for just one day before
signing to the trial period, successfully argued that she was not a
new employee. The Court decided that her dismissal under the trial
period was unjustified.
We have some trouble-shooting tips for employers:
Only employ 'new' staff on a 90 day trial period. A
staff member who has previously worked for your organisation cannot
be dismissed under a trial period, even though the role may be new.
So, if say, you previously employed someone in the role of
Financial Advisor, you cannot rely on a 90 day trial period to
dismiss the employee in their new role as General Manager.
The trial period must be in writing and comply with legal
requirements. It should say that the employee will serve a trial
period for a specified period (of not more than 90 days) from the
beginning of the employee's employment, during which time the
employer may dismiss the employee; and that the employee is not
entitled to bring a personal grievance or other legal proceedings
in respect of the dismissal.
Beware setting out any unnecessary obligations for your
business in the trial period. For example, do not say that your
business will provide the employee with formal training during the
trial period, as you will need to comply with these
Give your new staff member sufficient time to read and sign to
their trial period in their employment agreement. It is important
that they return the signed employment agreement before starting
employment. Otherwise, they could argue that they are not
'new' employees, and that the trial period does not
If you don't think your employee is suitable for your
organisation, you should let them know prior to dismissing them.
Consult with them about their performance or attitude, and provide
an opportunity for improvement. You are legally obliged to be open,
honest and communicative with staff. If you fail to deal with
performance concerns, your employee could claim unjustified
disadvantage and breach of good faith.
You must notify your employee within 90 days (or a shorter
timeframe as set out in your trial period) that you intend to
dismiss them. It is too late if you have waited until the 91st day.
Make sure that you give staff the correct period of notice set out
in their employment agreement. You may be able to pay this in
We recommend that employers seek legal advice before writing or
relying on trial periods. Otherwise, your business may be 'on
Most importantly, take care not to over-rely on trial periods as
a part of your recruitment process. You should perform all your
usual recruitment techniques (including interviews, psychometric
testing and reference checking) before engaging a new staff member.
Think of a trial period as a back-stop.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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