The Myth about 90 Day Terminations

By Russell Drake

 

An Employee cannot raise a personal grievance in relation to their termination under a 90 Day Trial Period – Fact or Fiction?

Many Employers believe that a termination under the s67A 90 Day Trial period provisions prevent an Employee from raising a personal grievance. However Employment Case Law highlights that a valid personal grievance could still be raised in situations where:

  • There are issues regarding the date of the signing of the agreement and the Employee’s commencement date.
  • The clause does not specify that the trial period commenced on the first day of employment.
  • The Employer had not raised any concerns with the Employee regarding their performance prior to making the decision to terminate.
  • The Employer did not provide an opportunity for the Employee to submit any feedback on the prospect of potential termination prior to the decision being made.
  • The Employee believes other factors associated with the employment disadvantaged them to the extent that they were not able to succeed in the role (i.e. lack of induction and initial training or support).

Case Law reinforces that the decision to terminate an Employee under the 90 Day Trial Period provisions must not be “as a bolt from the blue” with the Employee needing to be advised: (1) that you are considering potential termination (2) the nature of the concerns held (3) the date a decision is likely to be made (4) their right to submit feedback for consideration prior to the decision being made.

Although the law does not require the same depth of process as would be required within a disciplinary meeting the absence of any robust process, or technical errors in the application of s67A, may still render you open to a personal grievance. If in any doubt regarding your obligations we encourage you to seek advice before commencing the process otherwise it may result in an expense and unnecessary settlement payment being required.

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