From 1 March 2009, employers who employ 19 or fewer employees will be able to employ new employees on a trial period of up to 90 calendar days.
Any trial period must be agreed to by the employer and employee in good faith and in writing as part of the employment agreement. The employer and employee must both bargain in a fair way about a proposed trial period. This includes considering and responding to any issues raised by the new employee.
An employer and employee may agree to a trial period only if the employee has not previously been employed by the employer.
If any employment relationship problem arises during the trial period, or if the employee is dismissed, the employee and the employer can access mediation services.
An employee who is given notice of dismissal before the end of a trial period cannot raise a personal grievance on the grounds of unjustified dismissal. He or she may, however, raise a personal grievance on other grounds, such as discrimination or harassment or an unjustified action by the employer that disadvantaged the employee.
If an employee agrees to a trial period, this does not affect his or her entitlements to holidays and leave.
If I am an employee, will the trial period apply to me?
From 1 March 2009, a new employer, who employs 19 or fewer employees, can provide you with an offer of employment that includes a trial period. A trial period is voluntary, and must be agreed to in writing and negotiated in good faith as part of your employment agreement. The written employment agreement should be signed by both you and your employer at the beginning of your employment relationship.
You and your employer must both bargain in a fair way about a proposed trial period. This includes the employer considering and responding to any issues raised by you.
If I am an employer, will I be able to offer a trial period to new employees?
From 1 March 2009, employers who employ 19 or fewer employees will be able to offer trial periods to new employees. Any trial period that you agree to with a new employee must be agreed to in writing and negotiated in good faith as part of his or her employment agreement. The written employment agreement should be signed by both you and your employee at the beginning of your employment relationship. A signed employment agreement may reduce the risks of legal challenge.
You and the employee must both bargain in a fair way about a proposed trial period. This includes considering and responding to any issues raised by the new employee.
When does notice have to be given?
Notice must be given within the trial period, even if the actual dismissal doesn’t become effective until after the trial period ends.
How many times can I agree to a trial period?
An employer and employee may agree to a trial period only once. If an employee has previously been employed by the employer, they may not agree to a trial period. For example, if an employee was employed for six months in 2006 and then applies for a position with that same employer in 2009, they cannot agree to a trial period.
What services are available if there is a problem during the trial period?
If any employment relationship problem arises during the trial period, the employee and the employer can access mediation services. In addition, while the employee cannot pursue a personal grievance for unjustified dismissal if the employee is given notice of dismissal during the trial period, a personal grievance may be pursued on other grounds such as discrimination, harassment or an unjustified action by the employer that disadvantages the employee.
Where do I go if I have further questions?
This website has been updated to include information about trial periods in the employment relations sections, including the How to Hire Guide for employers and the Employment Agreement Builder. If you have further questions or concerns related to trial periods that are not covered by the information here, please contact the Department of Labour on freephone 0800 20 90 20.
This page was last
updated on
11-Sep-2009
and is current.
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