THE NEW 90 DAY TRIAL PERIOD

The new law is an amendment to the Employment Relations Act 2000

1. The law is effective from 1st March 2009.
2. The new law affects employers with 19 or fewer staff, whether they are casual, fixed term, part-time or full time employees.
3. The law only applies to new employees and cannot affect any existing employee in their current job.
4. A trial period is not automatic for new jobs in small businesses. It only occurs if the employer and employee agree to it.
5. The trial period will need to be in the Employment Agreement.
6. The 90 days is a maximum and it can, by agreement, be less.
7. All employment rights such as good faith, non-discrimination, non-harassment, holidays, leave and OSH are maintained during a trial period. It is only if you dismiss an employee for such matters as poor performance, misconduct or redundancy during the trial period that they will not be able to take a personal grievance. If you dismiss someone because they are pregnant (for example), you can have a grievance brought against you because this is sexual discrimination.
   
   The termination itself does not have to fall within the 90 day period of the trial period. The employer must give the employee notice of termination within the period. There is no minimum notice period in the legislation - it simply says that the employer must "give the employee notice" – so it appears short or immediate notice of termination will be within the law.
   
   Employees can still bring personal grievances for sexual or racial harassment, unjustified disadvantage, discrimination, duress and failure by an employer to comply with the continuity of employment provisions in the Employment Relations Act 2000 or in the Employment Agreement.
8. There can be only one trial period per employee. An employer can not have a trial period for an employee who has worked for them previously.
9. If an employee leaves a benefit (WINZ) to take up a job which is terminated within the 90 day trial period, there is no stand down returning to the benefit.

Suggested Trial Period Clause

1 Agreed Trial period

The parties agree that this employment is subject to a trial period of ___________days, pursuant to section 67A and B of the Employment Relations Act 2000. The trial period shall begin on the date the employee commences duties and end on _______________. The employee acknowledges that during this trial period, the employer may dismiss the employee by giving one week's notice prior to the end of the trial period and, in the event of dismissal, that the employee is not entitled to bring a personal grievance or other legal proceedings in respect of that dismissal.