I have written elsewhere about certain pitfalls you should be aware of when hiring staff on a 90-day trial period.
Sometimes, though, you just need a checklist to make sure you are doing the right thing. Who has the time to review all the most recent case law on a legal topic when you’re busy running your business?
With that in mind, I offer here two checklists you can use to guide you when hiring and firing staff under the 90-day trial period.
90-DAY TRIAL PERIOD HIRING CHECKLIST
There are two phases to the hiring process that you will need to consider if you want to ensure you have an enforceable 90-day trial period in place.
Before you make an offer of employment to a candidate, make sure:
- the candidate has not worked for you before in any capacity, whether as a casual, part-time or full-time employee.
- you have drafted a written employment agreement for the employee that includes a 90-day trial period clause. (I provide an example clause you can use here.)
- you arrange to communicate your offer of employment at the same time as providing the candidate with the employment agreement containing the 90-day trial period clause.
- you are likely to have less than 20 employees at the start of the day the employment agreement is entered into. If not, you may prefer to use a probationary period clause instead.
Before you let the new employee start work, make sure:
- the new employee is given a fair amount of time to consider the terms of the draft employment agreement containing the 90-day trial period before commencing employment or being required to accept your offer. (If you are unsure what a fair amount of time might be, I recommend you give it at least a week.)
- the new employee signs the employment agreement and delivers the original copy to you.
- you sign the employment agreement and provide the employee with a copy, retaining the original for your records.
90-DAY TRIAL PERIOD FIRING CHECKLIST
In order to fall within the rules governing 90-day trial periods, the notice to dismiss must be given at the right time and in the right way. There are things you need to check both before and after giving notice.
Before you give notice to dismiss under a 90-day trial period, make sure:
- the 90-day trial period (or whatever shorter period you have agreed with the employee) has not yet expired, because the notice to dismiss must be given within that period. (Tip: if you have an iPhone, you can ask Siri, “What date is 89 days after [the employee’s starting date, e.g. 1 October 2020]?”);
- the employer had less than 20 employees on the date the employment agreement was entered into;
- you are aware of the requirements under their employment agreement to dismiss under the 90-day trial period, including what period of notice the employee must be given when you dismiss then and how notice is to be given (if in doubt about this, seek legal advice).
To give notice to dismiss under a 90-day trial period, make sure:
- you give notice in accordance with the employee’s employment agreement; and
- the notice you give is clear and unambiguous, and explains how and when their employment is to be terminated.
After you give notice to dismiss under a 90-day trial period, make sure:
- you give the employee a reason for why you have decided to dismiss them if they ask you. You do not have to give your reasons in writing, but you are obliged to at least tell them your reasons verbally; and
- you let their employment end in accordance with their employment agreement and the notice you have given them. You could let the employee work out their period of notice, or alternatively, if the employment agreement permits, pay them in lieu of notice or send them home on “garden leave” (where they will remain your employee for the period of notice but not be required to work it out).