On probation - do you have a good probationary period?

In recent times, when employers have been able to use trial periods to swiftly address problems with new employees, old-fashioned probationary periods have fallen out of vogue.  However, as from today employers of 20 or more people can not use trial periods, so the time has come to dust off your employment agreement and see if you have a good way of dealing with a bad hire. 

It is often common to say that a probation period is nothing more than a performance management process - as to justifiably terminate employment, there needs to be a series of meetings, and support to the employee.  While procedural fairness is essential in any employment process, the Employment Relations Act specifically provides for a probation period - so this must be an additional ‘right’ - ie, a probation period is more than just a performance management process. 

In my view, in the probation period, the employer can focus on issues such as organisational fit, and whether or not the employee is actually capable at the level they represented themselves to be at interview.  Therefore, I suggest a probationary period that specifically focuses on the things the employer thinks essential to a strong ongoing relationship. 

The clause might say something like:

The Employee’s employment is subject to a probationary period of four months, pursuant to section 67 of the Employment Relations Act.  This period is designed as a time in which the Employee is expected to:

• complete required training and induction

• learn and demonstrate adherence to the standards and expectations of the workplace

• adjust to the demands of the new job, and deliver on the representations he/she made at appointment

• adapt and align to the Employer’s workplace culture

During the probationary period, the Employer will monitor and assess the Employee’s performance against these specific expectations. 

It may be that you can be even more prescriptive, and set out specific milestones that the employee agrees to achieve.  So long as the milestones are reasonable then the probation provision may have the employee agree that dismissal would be appropriate in instances of failure. 

As noted above, procedural fairness requires that the employer’s concerns against the specific expectations to be drawn to the employee’s attention - so a smart employer will develop a monitoring and feedback programme for the first weeks of the appointment to ensure those criteria are discussed with the employee. 

There is no doubt that with trial periods off the table, employers will have to work a little harder in the early days of a new employment relationship, and there will be development of case law in this area.  Watch this space.

Please do not hesitate to contact me if you need some assistance in developing a new probationary provision.