Probationary Periods.
When taking on a new employee, or a current employee is changing roles, an employer may want to make the employee’s employment agreement subject to a probationary period. A probationary period can be used by an employer to assess the skills of an employee in order to determine their suitability to the position.
Probationary periods, however, are not akin to 90-day trial periods. A 90-day trial period may only be used if an employer has less than 20 staff and the employee has never worked for the employer.
Starting point:
Probationary periods cannot be used to limit the rights and obligations of an employer (or employee). Therefore, if an employer fails to follow correct processes the probationary period may be unenforceable (deeming an employee a permanent employee) or, result in an employee raising a personal grievance claim.
General processes to be followed:
When considering whether to employ an employee subject to a probationary period it is always recommended to check with your lawyer first, to discuss the particular circumstances and facts of the situation.
Some of the general processes an employer must follow when going through a probationary period with an employee include:
- The probationary period must be in writing (and can only apply for a reasonable length of time).
- The requirements of good faith apply to both parties during the probationary period.
- The employer is to review and supervise the employee’s performance during the probationary period.
- The employer is to communicate any concerns to the employee during the probationary period, particularly in relation to performance.
- The employee must be provided with additional training and support where needed.
- If nothing is said or one by the employer at the end of the probationary period, and the employee continues to work, the employee becomes a permanent employee.
- An employer may be able to dismiss an employee at the end of a probationary period, if the employer has followed a fair and reasonable process during the probationary period and subsequently, during the termination process.
End of the probationary period:
An employee cannot simply be asked to leave based on an inadequate skill set. An employer must have fairly assessed the employee (which includes providing additional training) before informing them of the intention to dismiss. An employee must then be given the opportunity to respond to the proposed dismissal and to have their response fairly considered before notice can be given to end the employment.
It is important to comply with the notice requirements of the probationary period to ensure notice given to an employee does not end after the probationary period ends.
Where to go from here?
This article is for informational and general interest purposes only and should not be used as a substitute for legal advice. The application and impact of laws can vary widely based on the specific facts involved. As such, before making any decisions or taking any action, you should consult your lawyer.
If you feel you could use some specialist advice, don’t hesitate to contact us.
