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  • Trial Periods again giving rise to trials

    16 September at 09:44 from atlas

    In NBR on 9th September 2014, there was an article about a case where an employee is asserting that their employment wasn't correctly terminated in accordance with the trial period provisions of the Employment Relations Act.


    The employee was simply told that their employment was terminated and they were handed a week's pay and holiday pay. The employee seems to be asserting that they should have been given notice i.e. a period of notice.


    The Act requires that notice be given before the end of trial period. It doesn't state how much notice is required or what form of notice must be given but I would expect that the law would require some period of forewarning. It may be able to be quite short, especially if that is what is provided for in the Employment Agreement.


    I posted a comment on LinkedIn recently suggesting that for many employers, the trial period is very beneficial.  Ninety percent of businesses in NZ employ 5 or less employees and those businesses, it is not just a question of whether the employee is competent but also a question of how compatible they are. It would be unthinkable that in a one on one situation or in a small team, someone who is simply a pain in the B should have to be employed but, without a trial period, that is the position. One person can spoil the whole team atmosphere, let alone a one on one situation and without a trial period, it would be very difficult to deal with someone who is just unpleasant to have around e.g. does the minimum work necessary but no more than that, is barely competent but no more than that, doesn't fit within a team atmosphere, always complains, is negative, is downright strange, etc - maybe a combination or all or just some of these.


    Some employment "mentor" on LinkedIn thought that the simple solution is to employ the right employee from the start - that there is no real excuse for employing an unsuitable employee. In my view, clearly a white board enthusiast with no sense of reality.  It simply isn't possible to make the right choice every time. Employees are on their best behaviour when seeking a job.  They can fool us (sometimes) and they can fool agencies. I once had an employee from hell. Though I wasn't hugely impressed by them, I had no idea of the nightmare that was coming my way - they fooled me (not easy), the agency, and one of my staff.


    I am sure that every employer tries to employ the "right" employee but not every employer receives the quality of applications that they would like, not every employer is spoilt for choice, and sometimes, it is only by way of a trial that the true colours of an employee are seen.


    For my part, save for one really unhappy experience, I have been reasonably lucky - but it only takes once to see the value of a trial period (not possible when I had my nightmare). The thing is, though, that if you can use a trial period, you do have to comply with the law, and some employers are still getting it wrong.


    Please contact me if I can help you with any employment law issues or an business law issues.


    Steven Dukeson LL.M. (Hons.)
    Dukesons Business Law
    PO Box 946, Shortland St, Auckland 1140, New Zealand
    Level3 (Room 303B),Achilles House,8 Commerce St,Auckland
    Phone 64 9 379 4556 Fax 64 9 379 4557


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