Will 90 Day Trial Periods survive the Labour Government?

By Russell Drake


In the past 90 Day Trial Periods have been utilised by Employers to assess an Employee’s suitability for the position in which they have been appointed. However, with a change of Government the question then arises as to whether these 90 Day Trail Periods will still be permitted.

It is commonly accepted that the Labour Party, and the Unions, are not the biggest supporters of the 90 Day Trial Provisions currently in place and as such the new Government is proposing to make changes to the way in which these operate.

Currently, if an Employee is terminated under the 90 Day Trial Period provisions they have no right to lodge a personal grievance against the Employer except where the Employer waives this provision, or if there has been some form of alleged discrimination or harassment. Under the new Government however, it appears that long gone will be the days where an Employee cannot lodge a personal grievance under the 90 Day Trial Provisions.

The Government is proposing that an Employee will be able to lodge a personal grievance against an Employer if their employment is terminated under the 90 Day Trial Period. Once a personal grievance is lodged an independent Referee will be appointed to determine whether the dismissal was justified in all of the surrounding circumstances. If the Referee determines that the dismissal was unjustified, then they may have the ability to fine the Employer up to $5,000.00 for the unjustified dismissal. Not only do Referees have the ability to fine Employers, all of their decisions will be binding and there will be no right of appeal! To top this off, it appears that the process will be conducted without representatives being permitted.

Such changes to the way that 90 Day Trial Periods operate will take away an Employer’s desire to utilise these methods to assess an Employee’s suitability for a role within their company.

As well as making changes to the 90 Day Trial Period provisions, the new Government has suggested that there may be changes to third-party employment. This could mean that an Employer hiring an Employee through a temp agency could now have further duties and responsibilities for what is now considered to be an out-sourced worker.

The new Government is proposing, that the contracted Employee, engaged through a temp agency, will have the same rights as an Employee who is employed with the company directly. Therefore this removes an Employer’s ability to assess an Employee’s suitability for a role by engaging them initially through a temp agency.

If the Government successfully implements these changes into legislation then we predict that the use of probationary periods will become more common in the Employment field.

At Russell Drake Consulting we work with Employers in all industry sectors on a full range of Human Resource and Employment Relations from providing legally compliant employment documentation to providing representation in Mediation and the Employment Relations Authority. Do not hesitate to get in touch if you would like some advice about anything you have read in this article, we would be happy to help.



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