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:  From 1 March 2009, employers who employ 19 or fewer employees are able to employ new employees on a trial period of up to 90 calendar days.  The method of calculating the 19 ie what number and type of employees are counted will vary depending on the different types of arrangements in the school.

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 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.

We are therefore urging caution at this time 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.