The 90-day Grievance Free Trial Period came into effect in 2009. While not mandatory, the existing legislation is now firmly embedded into our employment psyche and agreements. And it’s now under review by the Coalition government. With legislation set to change, employers with more than 19 employees will no longer be able to utilise the Grievance Free Trial Period.
It’s certainly been an interesting talking point from an employer point of view. Some large employers have opted not to utilise this optional piece of legislation within their employment policies.
Instead they have chosen to maintain their employer brand and rely upon robust recruitment processes and performance management.
So potentially, any changes are unlikely to have too much impact on larger companies, with 100-plus employees.
Many of the companies I work with are smaller employers and the legislation has been useful, and served its purpose – if and when it was ever needed.
Let’s face it, recruitment mistakes do happen, and the 90-day trial period is there for both the employer and the employee to utilise.
I’ve seen it utilised for a variety of reasons, but never abused.
In fact, I feel that it has provided employers with confidence to perhaps give someone a chance, when previously perhaps they would not have taken on an employee.
The existing law has been tested and interpreted in a more complex way than was originally envisaged.
Labour market supply and the ability to attract the best candidates are key considerations when looking at utilisation of this clause.
The grievance-free trial period wasn’t intended to be used as a “cure all” for poor recruitment
and induction processes.
And it’s not a fail-safe way of getting rid of unsuitable employees, as some thought initially might have been
the case.
Key areas of importance in the existing legislation included: prior employment – the trial period cannot be used where there has been any previous employment relationship, with no indication of a timeframe in which this would apply.
This has been an interesting challenge for those organisations that have a more transient work force or branches throughout the country.
Other relevant key points to note include that the employment agreement with the 90-day trial period clause had to be signed before the employee commencing work, or it was deemed not applicable (and a few employers have been caught out with this).
Other obligations – that good faith requirements have to be active, constructive, responsive and communicative – still apply.
The notice period must be clear; and the clause must comply with other provisions already in place within the employment agreement.
For example, should a training provision be included, then the employer must satisfactorily demonstrate that the employee was provided every opportunity to remedy the skill shortfall, otherwise they are contradicting their own policies and procedures, and therefore not demonstrating good faith to the cause.
As to what “grievance-free” means under this piece of legislation: it includes that an employee dismissed under the trial period provision may claim a personal grievance on some grounds, but may not make a claim of unjustifiable dismissal.
A claim may still be made on grounds such as discrimination, sexual harassment, unjustified disadvantage, duress relating to union membership, and non-compliance with other employment legislation, e.g. issues such as minimum wage and health and safety.
