The Trial Period and Probation Period are terms that can describe the initial test run period in employment. Each term is different, and care should be taken to ensure the correct intended term is expressed in an employment agreement.

A trial period provision can only apply to a new employee who has not previously been employed by the employer. The provision must express the length of the trial period (not exceeding 90 days), specify that the employee may be dismissed during the trial period and if so, that the employee will not be entitled to bring a personal grievance or other legal proceedings relating to that dismissal.

To be enforceable the agreement containing the trial period provision must be signed by the employee and returned to the employer before the first day of employment. An employee who is given notice of termination during a trial period cannot bring a personal grievance or other legal proceedings in relation to his or her dismissal and the employer is not obliged to provide written reasons for dismissal.

An employee terminated during a probationary period can request written reasons for dismissal and may bring a personal grievance challenging the dismissal for being substantively unjustified or procedurally unfair. An employer must meet certain obligations before terminating an employee. During the probationary period the employee must be given an opportunity to improve on any performance shortcomings, and be warned of the likelihood of dismissal if there is a failure to improve after fair warning.

This post was published in the FMCG Business magazine