90-day trial periods are in the spotlight again

In a recent determination from the Employment Relations Authority four early childcare teachers successfully argued that the trial period clause in their employment agreement was not valid as the clause did not expressly state the date the trial period would commence. The Employment Relations Act requires employment agreements contain specific wording regarding the 90-day trial provision including words to the effect that the trial period is “…starting at the beginning of the employee’s employment…”. The Authority Member found that the trial period clause in this case did not reasonably imply that the 90 days started on the first day the teachers started work for Lighthouse ECE Ltd

Larmer said there were a number of circumstances in which the parties may agree that the 90-day trial period does not start on the first day of employment. For example, offsite training, temporary overseas placement or a lengthy induction period could occur before an employee carries out the duties they would normally be required of in the employment.

We disagree and believe the decision is an overly technical interpretation of the trial clause section of the Act. A 90-day trial period can only start at the beginning of an employee’s employment – we don’t believe there’s any other date on which the trial period can begin.

Our recommendation is that until such time as the decision is overturned on appeal or by a later decision, your employment agreements are carefully checked to ensure the 90-day trial period provision includes the words “the 90-day trial period commences on the Commencement Date” and ensure the Commencement Date is recorded in the agreement.