- Good faith obligations still apply during a trial period termination process. This includes open, honest and transparent communication and being prepared to listen. Treat the employee fairly at all times.
- The protection from a personal grievance relates to unfair dismissal only. The employee can still raise a grievance on grounds of disadvantage, harassment or discrimination, so it is wise to be professional at all times and adhere to your good faith obligations, as mentioned above.
- Check the employment agreement – it must have a trial period clause, compliant with the new legal wording.
- Check that both parties signed the employment agreement before the employee’s first day of employment (e.g. signed on or before Sunday 4 June for a first day of Monday 5 June).
- Ensure they had reasonable time to sign the agreement before commencing work i.e. not 1 day. Ideally at least 1 week.
- Ensure the employee has never worked for you before as an employee. It’s fine for them to have worked for you as a temp or contractor.
- If you do not meet all the criteria outlined above the trial period will not be valid. Call MyHR to double check before proceeding.
- Did you provide the employee with appropriate training, feedback, and the opportunity to improve during the trial period? If you did not give them feedback about your concerns (or support them to improve) then they may have grounds for a personal grievance claim for unjustified disadvantage. Call MyHR if you have any questions or are unsure.
- If you are confident you can meet all the obligations outlined above, the following process applies:
- Speak to the employee in a private meeting, where they are not embarrassed in front of others (they do not require notice of this meeting).
- Explain to the employee that you are considering terminating their employment during the trial period for (whatever) reason. You should include the reason as this goes back to your good faith obligations and ensures you’re not being discriminatory.
- Ask the employee if they have anything to say about the termination and its reasons, and take a short break so they can think about it.
- Reconvene and listen carefully to their response – Have they been trained properly? Have they been harassed by any other workers? These are the things that could result in a personal grievance claim.
- Consider everything the employee says. You may need to take a second break to consider their points if they raise a lot of concerns.
- Make your decision and communicate the decision verbally to the employee.
IF you decide to terminate employment, tell the employee their employment is terminated. Depending on the terms of their employment agreement, you have the option to have the employee work out their notice period, or pay them in lieu of working their contractual notice period.
If the employee asks for the reasons for the dismissal, you must tell them. If they ask for a letter, MyHR will write one for you.
OR if you have considered the employee’s response and decide to give them an opportunity to improve, write down the performance improvement plan including activities, key milestones and any support the company will provide.