Mandy Pol: 90-day process must be fair

Employing the right people is not a simple task.

You need to attract and engage talented candidates and ensure the person you select is not only competent but a good fit for your organisation. Getting hiring decisions right can be the difference between successful business growth or indefinite stagnation.

Which is why we utilise a range of vetting techniques to qualify and build an overall picture of a candidate, seeking to gather a wide range of information that will hopefully increase the probability of making a great hiring decision.

But no system is perfect, occasionally employment mistakes happen and, when they do, employers need flexibility to correct them, hence the introduction of the 90-day trial period on the April 1, 2011.

Although it has been almost three years since this became an option for employers, there still appears to be confusion over how it works.

To be effective, a 90-day trial period within an employment agreement must:

Be in writing and signed before a person starts work, or the clause cannot be relied upon.

Be voluntary and must be by agreement between the parties.

Not be used for an existing employee (including a previous temp, volunteer or someone who may have only worked for a short period).

Not be longer than 90 days.

Notice of termination must be given within the 90-day period, even if the notice period to be worked finishes outside that time frame.

The biggest issue we seem to be hearing is in relation to a trial period being separate from a permanent employment agreement, with permanent employment being something offered after the trial period has concluded. This is not the case, the 90-day period is merely a clause within an employment agreement.

An offer of employment is a formal permanent or casual offer with all the rights and obligations that go with it, only with a clause that allows employers to terminate within 90 days should the relationship not work as intended.

The protection offered by this clause is against a personal grievance being raised for reasons of "unjustified dismissal", it does not relieve an employer of their duty of good faith and fair treatment, and the courts have been strict in their rulings in this regard.

A termination under a 90-day trial period should never come as a surprise to an employee. An employee is entitled to understand what the issues are, have the opportunity to respond, and, if it's a performance issue, they should be provided with the time, resources and support to improve. Fair processes take a little time; it is not a single meeting or conversation.

Please remember although the 90-day trial provisions make the process much simpler and easier to manage, it must still be fair.

- Mandy Pol is a recruitment specialist at Rotorua's Talent ID recruitment agency