Probation and trial periods in the Education Sector

The Employment Relations Act 2000 provides for a probationary or trial period in 2 circumstances:

1. Where there are currently provisions in the employment agreement for a probationary period and the parties to an employment agreement agree as part of the agreement that an employee will serve a period of probation.  The law relating to unjustified dismissal still applies

Comment: Currently no provisions exist in any of the collective agreements nor the individual employment agreements promulgated by the Ministry of Education for probation and therefore this provision is not currently available to boards.

2. A trial provision where there is a written provision in an employment agreement that states, or is to the effect, that for a specified period (not exceeding 90 days), starting at the beginning of the employee's employment, the employee is to serve a trial period; and that during that period the employer may dismiss the employee.  If the employer does so, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.  But is able to take an action for such matters as discrimination or harassment.

Intention for trials:  Employers may employ new employees on a trial period of up to 90 calendar days. 

Any trial period must be agreed to by the employer and employee in good faith and in writing as part of the employment agreement. The employer and employee must both bargain in a fair way about a proposed trial period. This includes considering and responding to any issues raised by the new employee.

An employer and employee may agree to a trial period only if the employee has not previously been employed by the employer and only once.   It is likely that employed will be in its broadest sense and include those who have been employed previously on a fixed term or relieving basis.

If an employee agrees to a trial period, this does not affect his or her entitlements to any other provisions in the relevant employment agreement.

If any employment relationship problem arises during the trial period, or if the employee is dismissed, the employee and the employer can access mediation services.

An employee who is given notice of dismissal before the end of a trial period cannot raise a personal grievance on the grounds of unjustified dismissal. He or she may, however, raise a personal grievance on other grounds, such as discrimination or harassment or an unjustified action by the employer that disadvantaged the employee.

Comment: Given it is not part of the employment agreement it is likely that such an arrangement would require the concurrence of the Secretary for Education.  There may be other issues which can arise if such an agreement is entered into such as transfer and relocation expenses.  Whilst the Labour Department have issued guidance on the legislative provisions there are some matters to consider that are specific to the Education Sector.

The State Sector Act (s74[2]) requires that:

The conditions of employment of employees in the Education service (other than employees at any tertiary education institution) who are not bound by any collective agreement shall be determined in each case by agreement between the employer and the individual employee, but the employer shall obtain the written concurrence of the Commissioner to the conditions of employment with that individual employee.

For “Commissioner” read Secretary for Education

Impact on Boards:  It is likely there will be limited application of the use of trial periods in the sector.  This is from both a practical and contractual basis.  It really is a matter of how the current collective agreements are set out and where they may either inhibit or make complex how this may be applied eg transfer provisions or link with fixed term arrangements.  Also if the prospective employee has previously been employed by the employer (even on a relieving basis), they cannot enter into a trial period.

Process would be:
 

Clause for inclusion

This provision is included as part of the employment agreement.

"A trial period will apply for a period of  (insert period but no more than 90 calender days) employment to assess and confirm suitability for the position. Parties may only agree to a trial period if the employee has not previously been employed by the employer.

During the trial period the employer may terminate the employment relationship, and the employee may not pursue a personal grievance on the grounds of unjustified dismissal. The employee may pursue a personal grievance on grounds as specified in sections 103(1)b-g of the Employment Relations Act 2000 (such as: unjustified disadvantage; discrimination; sexual harassment; racial harassment; duress with respect to union membership; and the employer not complying with Part 6A of the Employment Relations Act 2000).

Any notice, as specified in the employment agreement, must be given within the trial period, even if the actual dismissal does not become effective until after the trial period ends. This trial period does not limit the legal rights and obligations of the employer or the employee (including access to mediation services), except as specified in section 67A(5) of the Employment Relations Act 2000."
 

Caution

We are urging caution in your approach and where a board is considering entering into such an arrangement they should contact their NZSTA adviser in the first instance so we can ensure all factors are considered.