Employers can employ new staff on trial periods, as long as they specify in writing that the employee is on a trial period - now also referred to as a "probationary arrangement".

The trial period can be as long as the employer considers it necessary to establish whether the employee can grasp the new job s/he has started. This could, for example, be a week, or could be as long as three months. The length of time is up to the employer. When deciding what length the trial period should be, the employer needs to remember that they must allow the employee the full length of the trial period to prove themselves capable, and cannot simply cut the time short, except on the grounds of misconduct or serious misconduct. And if there are issues of misconduct, or serious misconduct, then the employee must be afforded procedural fairness the same as any long serving employee. Failure to do so will result in successful personal grievance claims.

During the probationary period the employee should be advised on a regular basis how they are performing. If the employee has not been able to adequately perform a particular task, the employer should advise the employee of the correct way to do the task. This may happen on more than one occasion. The employee should also be told whether this could impact on the success of the trial period. This could be as simple as stating for example

If the employer simply chooses to say nothing, and then at the end of the trial period, advises the employee that "things haven't worked out - here's a cheque for your wages and holiday pay", the employer will end up paying a few thousand more dollars once the personal grievance claim has settled. Why? Because the employee was never told s/he was doing anything wrong, and therefore was not given any opportunity to fix it. The Courts view the trial period as something that both employer and employee will work at, to try and ensure it will be a success. This will all now be a part of acting in "good faith".

If an employer has set out in writing the existence of a trial period for a specified time, the employer needs to ensure that a clause is also included to allow the employer to dismiss the employee (following a proper and fair investigation) for misconduct. If this clause is not included and the employer dismisses the probationary employee, the employee can claim lost wages to the end of the probationary period, not to mention compensation for stress and humiliation etc.

Best advice - seek professional advice first, before commencing any disciplinary proceedings, or where the employee is not performing adequately under the trial period.