One of the reasons for this is that trial periods have been subject to all of the usual disciplinary rules involving the need for cause and a fair process.
Any employee dismissed under a trial period also has had full access to our personal grievance laws.
However, for some employers, the rules have changed. That is because on 1 March 2009, the Government’s controversial “trial period” legislation became law.
Businesses which employ fewer than 20 employees are now able to introduce a trial period of up to 90 days for new employees. During this trial period, the employer may legally dismiss the employee, without giving any reason, simply by giving notice of termination. A disciplinary process will not be required, and the employee will not be able to bring a personal grievance for unjustified dismissal.
There are several key requirements that employers must be aware of before deciding whether to use a trial period:
• It can only apply to new employees hired after 1 March 2009.
• It must be agreed with the employee and should be recorded in the written employment agreement.
• The maximum duration of the trial period is 90 days. Shorter periods can be agreed to, but nothing longer.
• Any employees (including casuals) working on the first day of employment, count toward the “fewer than 20” limit.
• An employee still has the right to raise a personal grievance on grounds other than unjustified dismissal, such as disadvantage, discrimination and/or harassment. The requirements of good faith also still apply. In other words, the trial period is not a “get out of jail free card” for employers, and fair treatment of staff is still essential.