For starters, there has always been an ability for employers to offer work on the basis of a probationary period. There has always been the ability to terminate someone’s employment during that period for non- performance. The employer did have to follow basic fairness by giving the employee guidance during the period as to whether or not they were ‘making the grade” and reasons for dismissal . That is no longer required.
My reading of the legislation is the real change is that if an employee is not performing adequately an employer can terminate them at any time prior to the end of the probationary period and there is no requirement of procedural fairness – that is, no requirement to tell them during the period how they are going nor give them reasons for the termination.
That does not mean someone under a probationary period can be dismissed for non – performance related reasons and it does not mean every new employee is automatically employed under a probationary period.
First, only employers with fewer than 20 employees (at the time the probationary period starts) will be able to offer positions to new employees subject to this new law. (Everyone else can still employ people under a probationary period but the old law regarding procedure will still apply)
Second, the probationary period is still something that must be agreed between the employer and the employee. If a potential employee does not agree to the probationary period then it cannot be enforced. The option to the employer is of course to refuse to employ someone unless they agree to the probationary period , but again , the employer has always had this ability. It must also be in an employment agreements. No written agreement – no probationary period.
The employer will not be able to dismiss on grounds that would otherwise be discriminatory (in other words because they find out the employee is of a race or religion they do not approve of) , justify a claim of harassment , be a breach of good faith or otherwise breaches health & safety obligations.
Only if you are dismissed for non performance will you not be able to take a personal grievance. I can see claims now where an employee will argue they were fired, not for non- performance but because, for example , they complained about a lack of safety on a work site or because they complained about sexual harassment. If this is the case an employee can still bring a personal grievance.
One incentive for an unemployed person to take a “risk “and accept a job with the new probationary period regime is that if they are dismissed within the 90 day period then they can go straight back onto the unemployment benefit without a stand down. In the normal situation there is stand-down if someone resigns or is dismissed ( unless they raise a personal grievance)
I am actually worried for employers because I can see employers not having written agreements thinking that they can dismiss someone for any reason they like as long as it is within 90 days – but you can’t.
This article originally appeared in the Southland Times Work To Rule column. Mary-Jane Thomas is head of Preston Russell's employment law team.
