90 Day Trial Law, Is It That Bad?

From March 1, if you get a job with small employer, it’s possible you can be fired in the first 90 days of your employment without knowing what for. In addition, have no right to challenge your boss as to why you lost your job. This is the so-called “personal grievance free” trial period or sometimes called a “probationary period”.

On first glance this looks rough on workers and smacks of bosses law. However, it is not as tough as it seems, nor indeed out of step with what happens overseas. In the UK for instance, you can’t go your boss for unjustified dismissal until you have worked a year. Australia, likewise also has fewer protections for new staff.

Small employers argue the expensive risks of personal grievances claims discourages them from giving new staff a go – particularly young people, Maori, and Polynesians. Statistics bear this assertion out.

A grievance can cost a small business anywhere from $1,500 to $8,000 plus a couple of days precious time just to make it go away – notwithstanding the merits or otherwise of the dismissal. This is because firing people has got so technical since lawyers were allowed into employment relations when the old union national award pay structures were done away with in 1991. Employment lawyers and advocates fee appetites are ravenous, and don’t enjoy undernourishment.

Let’s look at the nitty-gritty of how this may work out in practice. The new law only applies to employers with fewer than 20 staff. So if you get a job in a Hutt Valley supermarket it’s unlikely to apply.

When one starts a new job the law says you must have a written employment agreement. There is no need for a boss, or indeed a worker to go to a fancy lawyer to get an acceptable agreement written or checked. It’s all free on the Department of Labour’s website www.ers.dol.govt.nz..

Your new employer will need to have written in an appropriately worded trial period. Something along the following lines:

You will be subject to a trial period not exceeding 90 days, to assess and confirm your suitability for the position. During the trial period we may terminate our employment relationship, and you will not be able to pursue a personal grievance on the grounds of unjustified dismissal in accordance with the Employment Relations Act 2000.

You have a right to disagree to this. Realistically however, in this tight job market, to not agree would likely torpedo ones chances of getting the job.

If you are rejoining an employer who you have worked for previously then you cannot have a “personal grievance free” trial period. Similarly, staff already on trial periods keep their existing right to raise a personal grievance if fired. Furthermore, a boss can’t extend a “personal grievance free” trial period beyond the 90 days.

The new law does not allow discrimination on the usual grounds whilst on the 90 day trial. That is discrimination on race, sex, religious belief, whether gay, disability or union membership. Personal grievances are permitted for these matters during a trial period. Rightfully so.

Another safety provision I guess, is the free Department of Labour Mediation Service is available, should you have a beef with your boss during your trial period.

Another, rather ambiguous right that remains unaltered is that the boss and worker are to deal with one another in ” Good Faith”, in the words of the Act this requires:

the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative,…

This waffley loophole will encourage someone to try to blow holes in the new law by arguing a personal grievance is allowed because, for example the boss never communicated. This is further confused by the requirement that a boss is not obliged to provide written reasons why they dismissed a trial worker. A fired worker may remain in the dark. In contrast, in any other circumstances a boss has to tell you why you were dismissed. A space to watch perhaps?

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