It has been common practice for employers to include both 90 day trial period and probationary period provisions in employment agreements.
The Employment Court has determined that this practice is no longer appropriate. The long and short of the Employment Court’s judgment is that a trial period provision in an employment agreement will be deemed invalid if it also contains a probationary period provision.
Therefore, in order to avoid any claims that a trial period provision is invalid, which of course opens you up to claims of unjustified dismissal, we recommend removing any probationary period provisions from new employment agreements.
For employers who currently have these provisions in their agreements, and are looking to terminate an employee under the 90 day trial provision, we believe that the only viable option is to rely on the probationary period (as opposed to the trial period provision) and undertake a termination process that covers off the procedural fairness and substantive justification requirements e.g. a ‘normal’ termination process for cause when relying on a probationary period provision.
If you have any queries about this development, please do not hesitate to contact us to discuss it.
Author: Robbie Bryant, Barrister
