Sunday, July 11th, 2010

90 day trial period

The 90 day trial period

The purpose of the 90 day trial period is to enable employers to take on staff without the risk of a personal grievance claim if things do not work out.

A recent Employment Relations Authority case suggests that employers must still take some care when deciding to terminate employment.

The case also illustrates the appropriate procedure if an employer wishes to terminate a probationary employee.

Nicole Schneider took action against her employer BBX Distribution PTY Limited claiming unjustified dismissal.  The case itself was not about the 90 day rule.  Nicole Schneider’s employment agreement contained a three month probationary period which enabled termination on giving one day’s notice.  The Authority, however, did make the following observation about the trial period:

The 90 day trial period does not exempt an employer from the duty of providing the opportunity for an employee to be heard when dismissal is contemplated”

Time will tell whether claims can be brought for dismissal under the 90 day rule.  Although an employee may not bring a claim for unjustified dismissal, there are still ways of going about it and an employer, doing so inappropriately, may well be challenged.

The Schneider case, in the meantime, illustrates exactly how not to go about things.

1             Nicole Schneider received no training, feedback or support during the time of her employment.

2           She was given a performance review sheet to complete and return, which she did.  There was no feedback.

3           On the same day that she completed the review sheet, she was advised that the company’s New Zealand manager would telephone from Auckland.  The manager advised her that her employment was terminated.  No reason was given.

4          Immediately after the telephone call, Nicole Schneider was given a written dismissal letter personally signed by the company’s managing director who, at that moment, was in Australia and had clearly signed the document some time previously.

5          There was no opportunity to state her case.  The managing director had clearly decided in advance that she would be dismissed.

6           The review process had been a farce.  The employee conducting the review had already been instructed to give a negative report.  It was all contrived and regarded by the authority as “shameful”.

Nicole Schneider was awarded $7,200 being 13 weeks remuneration and $9,000 by way of compensation for the distress and humiliation.

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