Failure to satisfy Trial Period requirements

Great care must be taken when terminating an employee under a trial period provision.  Before terminating the employee check that:

• The employee has not previously been employed by the Company (or a predecessor employer).
• The employment agreement containing the trial provision was signed before the employee started work (ie not on the first day of work because in that case there is a risk that the employee's employment started before they signed the agreement thereby rendering the trial period null and void).
• The trial period specified is not more than 90 calendar days. (Note: The trial period starts from the date the employee starts work).
• The decision to terminate is made before the end of the trial period (not necessarily 90 days as a shorter trial period may have been specified in the agreement).
• The trial period in the written employment agreement specifies:
• • The period of the trial, being a period not longer than 90 days.  
  • That during the trial the Company may dismiss the employee.
  • That if the Company dismisses the employee, he/she is not entitled to bring a personal grievance for unjustified dismissal.
• Then ensure that any provisions in the agreement relating to review periods or assistance that will be provided during the trial have been complied with.
• There must be good reasons for the employee’s employment to be terminated – ie the decision should not be arbitrary or capricious. This implies that any shortcomings in the employee’s performance must be drawn to their attention before termination is contemplated.
• If the employee is to be terminated they must be given notice, or paid in lieu of notice if the agreement makes such a provision. The notice must be given before or at the end of the trial period but the employee’s employment may end after the expiry date of the trial period.
• At the point of termination you are not obliged to advise the employee of the reasons for the termination or provide an opportunity for the employee to comment before the dismissal takes place. However, if the employee asks the reasons he/she is entitled to an explanation at that time.
  
  

You can generate the termination letter here.

Provided the foregoing conditions are met the employee has no grounds to bring a personal grievance for unjustified dismissal. However, that does not prohibit the employee from bringing a personal grievance for unjustified disadvantage or grievances arising from alleged discrimination, sexual and racial harassment and other similar more specific grievances.