Invalid Trial Period

A trial period becomes invalid when it fails to meet the strict legal requirements set out in the Employment Relations Act. The most common reason for invalidity is timing - the trial period clause must be included in the employment agreement before the employee starts work. If the agreement is signed after the employee has already begun working, even by a few hours, the trial period is automatically invalid.

Another frequent cause of invalidity is applying trial periods to employees who are not genuinely 'new' to the organisation. If you've previously worked for the same employer in any capacity, including as a casual worker, contractor, or in a different role, you cannot be subject to a trial period. This rule applies even if there was a significant gap between your previous employment and your new role.

The trial period clause itself must be clearly written and unambiguous. Vague language, contradictory terms, or clauses that don't properly explain the employer's rights during the trial period can render it invalid. The clause must specifically state that the employer can dismiss the employee during the trial period without following the usual process, and it must clearly define the length of the trial period.

Fixed-term and casual employees moving to permanent positions cannot be subject to trial periods, as they are not considered 'new' employees. Similarly, if your employment agreement contains other clauses that contradict the trial period provisions, such as detailed disciplinary procedures that must be followed, this can invalidate the trial period.

One of the most frequent mistakes employers make is having employees start work before signing their employment agreement. This might happen when there's urgency to fill a position or when HR processes are delayed. Even if the employee verbally agrees to the trial period, starting work before the written agreement is signed invalidates the trial period entirely.

Employers often misunderstand who qualifies as a 'new' employee. Rehiring former employees, promoting internal candidates, or converting contractors to employees are all situations where trial periods cannot be used. Some employers incorrectly believe that a trial period can apply whenever someone starts a new role, regardless of their history with the organisation.

Another common error is failing to properly document the trial period in the employment agreement. Some employers use template agreements without customising them properly, leading to unclear or contradictory terms. Others fail to specify the exact length of the trial period or include language that suggests the usual dismissal procedures will still apply.

Many employers also make procedural errors during the trial period itself. While they don't need to follow the full disciplinary process, they still must act in good faith and cannot dismiss employees for discriminatory reasons. Dismissing someone during a trial period for reasons related to pregnancy, family responsibilities, or other protected characteristics can invalidate the entire process and expose the employer to discrimination claims.

Some employers attempt to extend trial periods beyond the original agreement or restart trial periods after they've expired. These practices are not legally permissible and can result in the entire trial period being deemed invalid, regardless of whether it was initially valid.

Even during a valid trial period, employees retain most of their fundamental employment rights. You're entitled to be paid at least the minimum wage for all hours worked, receive proper rest breaks, and work in a safe environment. Your employer must still comply with health and safety obligations and cannot subject you to discrimination or harassment.

The principle of good faith applies throughout the employment relationship, including during trial periods. This means your employer should be honest and open in their dealings with you, provide reasonable feedback about your performance, and give you a fair opportunity to demonstrate your suitability for the role. They cannot act arbitrarily or in bad faith when making dismissal decisions.

You have the right to receive reasonable notice of dismissal, even during a trial period. While the notice period may be shorter than for established employees, you should still be given appropriate warning that your employment is ending. Your employer should also pay you for all work performed up to the date of dismissal, including any accrued holiday pay.

If you believe your trial period is invalid or that you've been dismissed unfairly, you have the right to raise a personal grievance within 90 days of your dismissal. This right exists regardless of what your employment agreement says about trial periods, as invalid trial period clauses cannot override your statutory rights under employment law.

During a trial period, you're also entitled to join a union and cannot be dismissed for union membership or activities. Your employer cannot use the trial period as a way to avoid their obligations under collective agreements or to discriminate against union members.

When a trial period is found to be invalid, the dismissal is treated as an unfair dismissal, opening the door to significant compensation. The primary remedy is compensation for lost wages from the date of dismissal until you find new employment, capped at three months' ordinary time remuneration. This can amount to thousands of dollars, depending on your salary level.

Beyond lost wages, you may be entitled to compensation for humiliation, loss of dignity, and injury to feelings. These awards recognise the emotional impact of unfair dismissal and can range from a few thousand dollars to $25,000 or more in serious cases. Factors that influence this compensation include the manner of dismissal, the impact on your reputation, and the effect on your mental health and wellbeing.

In some circumstances, you might be able to seek reinstatement to your position. This remedy is more commonly awarded when the dismissal was particularly unjustified or when you have a strong desire to return to work. However, reinstatement is not always practical, especially if the employment relationship has broken down irretrievably.

You may also be able to claim reimbursement for costs incurred as a result of the dismissal, such as job search expenses, career counselling costs, or professional development expenses needed to find new employment. If you had to relocate for the job and were then dismissed due to an invalid trial period, relocation costs might also be recoverable.

The Employment Relations Authority can also make orders requiring your employer to provide references or remove negative information from your personnel file. These remedies help protect your future employment prospects and ensure that the invalid dismissal doesn't continue to harm your career.

Building a strong case for an invalid trial period requires careful documentation and evidence gathering. The most crucial document is your employment agreement, which should clearly show when it was signed relative to when you started work. If the agreement was signed after you began working, this is strong evidence that the trial period is invalid.

Gather all communications with your employer, including emails, text messages, and written notices. These can help establish the timeline of your employment and dismissal, and may reveal whether your employer followed proper procedures or acted in good faith. Pay particular attention to any feedback or performance discussions, as these can be relevant to whether the dismissal was genuine.

Document your employment history with the organisation, including any previous roles, casual work, or contractor arrangements. This information is crucial for establishing whether you qualify as a 'new' employee eligible for a trial period. Bank statements showing previous payments from the employer can be valuable evidence of prior employment relationships.

Keep records of your job search efforts and any financial losses resulting from the dismissal. This includes application records, interview expenses, and documentation of any reduction in income. These records support claims for compensation and demonstrate the practical impact of the unfair dismissal on your life.

If there were witnesses to your dismissal or to conversations about your performance, their statements can be valuable evidence. Colleagues who can attest to your work quality or to the circumstances of your dismissal may be able to provide supporting testimony for your case.

If you believe your trial period was invalid, the first step is to raise a personal grievance with your employer within 90 days of your dismissal. This involves sending a formal written notice explaining that you're raising a grievance and outlining the basis for your claim. The notice should clearly state that you believe the trial period was invalid and that your dismissal was therefore unjustified.

Your employer then has a reasonable opportunity to respond to your grievance and attempt to resolve the matter. This might involve discussions about compensation, reinstatement, or other remedies. Many cases are resolved at this stage through negotiation, avoiding the need for formal proceedings.

If the matter cannot be resolved directly with your employer, you can file an application with the Employment Relations Authority. The Authority will investigate your claim, consider evidence from both parties, and make a determination about whether the trial period was valid and what remedies, if any, you're entitled to receive.

The Authority process typically involves document exchange, where both parties provide relevant evidence, followed by an investigation meeting where you can present your case. The Authority member will ask questions and may seek clarification on various points before making their decision.

Throughout this process, mediation may be offered as an alternative way to resolve the dispute. Mediation can be faster and less formal than the Authority process, and allows both parties to have more control over the outcome. Many employment disputes, including those involving invalid trial periods, are successfully resolved through mediation.

Most invalid trial period cases are resolved through settlement negotiations rather than proceeding to a full Authority hearing. Settlement discussions can begin as soon as you raise your personal grievance and may continue throughout the formal process. These negotiations allow both parties to avoid the uncertainty, cost, and time involved in formal proceedings.

Settlement amounts for invalid trial period cases vary significantly depending on factors such as your salary level, the length of time you were employed, the circumstances of your dismissal, and the strength of your case. Settlements typically include compensation for lost wages and may also include payment for hurt and humiliation, depending on how the dismissal was handled.

When negotiating a settlement, consider not just the immediate financial compensation but also other terms that might be important to your future. This could include agreed references, confidentiality clauses, or agreements about what information can be shared with future employers. Some settlements also include agreements that the employer will not oppose any application for unemployment benefits.

It's important to understand that accepting a settlement typically means you cannot pursue the matter further, even if you later discover additional evidence or if your circumstances change. This is why it's crucial to have legal advice before agreeing to any settlement terms, to ensure you're receiving fair compensation for your losses.

If settlement negotiations are unsuccessful, the matter will proceed to an Authority determination. While this provides the opportunity for a full hearing of your case, it also involves additional time, stress, and potential costs. The Authority's decision will be binding on both parties, though there are limited rights of appeal to the Employment Court in certain circumstances.

Given the complexity of employment law and the strict time limits involved, it's advisable to seek legal advice as soon as you suspect your trial period may have been invalid. An employment lawyer can quickly assess the validity of your trial period by reviewing your employment agreement and the circumstances of your hiring and dismissal.

Legal help is particularly important if your case involves complex issues such as previous employment relationships with the same employer, discrimination claims, or disputes about when your employment agreement was signed. These situations require careful legal analysis and strategic thinking about how to present your case most effectively.

If your employer has significant resources or is represented by lawyers, having your own legal representation helps level the playing field. Employment lawyers understand the tactics commonly used by employers and their representatives, and can ensure your rights are properly protected throughout the process.

Early legal advice can also help you avoid common mistakes that might weaken your case, such as accepting inadequate settlement offers, missing important deadlines, or failing to preserve crucial evidence. Lawyers can guide you through the personal grievance process and help you understand what outcomes are realistic in your particular circumstances.

Consider seeking legal help immediately if you're facing financial hardship as a result of your dismissal, as lawyers may be able to expedite settlement discussions or seek interim relief. Many employment lawyers offer initial consultations to assess your case and explain your options, helping you make informed decisions about how to proceed.