Trial periods back in fashion

By Mark Lawlor, Partner

The new 90-day job trial period, which comes into effect March 1, may not be as straightforward as it seems, according to a leading Auckland employment law specialist.

Mark Lawlor, of national and trans-Tasman firm Duncan Cotterill, said employers would be watching with interest to see how the reality pans out.

Under the new regime, an employer, with fewer than 20 staff, can employ a person on a trial period, during which the employee can be dismissed “at will”. The employee cannot bring a claim of unjustified dismissal.

“The trouble is that it is almost contrary to the principle of good faith, which runs through all employment relationships. Good faith requires employers to be responsive and communicative with their employees, as well as being active and constructive in “maintaining” a productive employment relationship”.

Lawlor said the onus was on employers to help ensure the trial period worked or they could face legal action.

“If an employer stands on the sidelines and does not actively assist a trialling employee, you may run the risk of a claim of breach of good faith or unjustified disadvantage,” he said.

Lawlor said that firms with more than 20 staff were already able to hire staff on a trial basis but this had become unfashionable in recent years.

“There is a common misconception that they are not legal or simply don’t work. That’s not the case. So long as an employer follows certain guidelines, a trial period can be a very useful and effective tool to decide whether a person should become a permanent member of their team.”

Location http://www.duncancotterill.com/index.cfm/1,159,513,0,html