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H. Offers including a trial or probation period
Trial periods
From 1 March 2009, employers who employ 19 or fewer employees will be able to employ new employees on a trial period of up to 90 calendar days.
Any trial period that you agree to with a new employee must be agreed to in good faith and in writing as part of the employment agreement. You and the employee must both bargain in a fair way about a proposed trial period. This includes considering and responding to any issues raised by the new employee.
You may only agree to a trial period with an employee if he or she has not previously been employed by you.
If you have concerns about the performance of an employee during a trial period, then you should raise them with your employee.
If any employment relationship problem arises during the trial period, or if the employee is dismissed, the employee and the employer can access mediation services.
An employee who is given notice of dismissal before the end of a trial period cannot raise a personal grievance on the grounds of unjustified dismissal. He or she may, however, raise a personal grievance on other grounds, such as discrimination or harassment or an unjustified action by the employer that disadvantaged the employee.
If you agree to a trial period with your employee, this does not affect his or her entitlements to holidays and leave.
Probation periods
Employers, including those who employ 20 or more employees, can agree to a probation period with new employees.
Employees during and at the end of their probation period have similar minimum employment rights as full-time employees.
The process of offer and consideration of employment agreements has to comply with the requirements for permanent employment when you are offering someone a position involving a probation period.
Any probation period that you agree to with a new employee must be agreed to in good faith and in writing as part of the employment agreement. You and the employee must both bargain in a fair way about the probation period. This includes considering and responding to any issues raised by the new employee
If you wish to have the first part of the employment relationship as a probation period, you must record the probation period in writing in the employment agreement, including its duration.
Realistic expectations for the probation period should be clearly specified in writing either in the letter offering the position or in the employment agreement.
The use of a probation period does not affect the right of employees to be treated fairly and reasonably before any decision is made to dismiss them.
You should use the same processes and take the same care in managing the probation period that you would take if you were performance-managing a permanent employee with a performance issue.
Good performance should be recognised and recorded, but where an employee is not performing to the expectations you have clearly set out for them, you should discuss your concerns with the employee, and provide reasonable guidance and assistance to support their improved performance.
If you have promised specific training or support, this should be provided, especially where this is intended to help the employee to improve.
Any review or feedback commitments you make at the beginning of the probation period should be adhered to strictly.
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This page was last updated on:
19-Feb-2009
and is current.
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