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Information on the 90-day trial clause

By The Team | October 8, 2013

Sometimes as an employer, you’ll want to trial a new staff member to make sure they’re the right fit for the job.

All employers can employ new staff on 90-day trials, and may dismiss them without any official reason if the employer doesn’t want to continue employing them.  However, 90-day trials do have some shortcomings and traps for employers that you should keep in mind.

An employee on a 90-day trial can still sue for unjustified disadvantage or hurt feelings.

This could happen if an employer dismisses a staff member in a way that causes hurt and humiliation:

  • by leaving it until the 89th day to tell the employee they didn’t survive the 90-day trial.
  • by allowing the employee to believe they were performing O.K.
  • the way the employer advises the employee.  Telling them they are useless in front of other employees

The 90-day trial clause does not excuse the employer from treating the employee in good faith.

Before the employment commences:

  • give the employee plenty of time to seek advice on the clause before signing it,
  • genuinely consider the employee’s comments about the trial period, and
  • don’t down-play the significance of the 90 day trial.

After employment has started:

  • advise the employee if the trial period isn’t going well, and
  • upon termination, discuss the reasons why the employee is being dismissed.

An employee could also sue for unjustified disadvantage for reasons of discrimination.

Discrimination could include things like sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status and sexual orientation.

The 90 day trial only applies to new employees.

If the staff member has been employed by your company at some earlier time, or if the employee started work before signing the agreement containing the 90 day clause, the trial period will be ineffective.

The employee must sign the employment agreement before starting work.

An employment agreement containing the 90 day clause needs to be signed prior to starting work, otherwise the clause is ineffective.

State in the 90-day clause that the trial period starts on the first day the employee actually starts work.

Without clearly establishing this,  the trial period might (perhaps unintentionally) be found to have begun before the employee actually starts work.

Also remember that the 90 days must be stated and calculated exactly. For example, “3 months” is not 90 days.

The employer must give notice of termination within the 90 days.

Make sure you advise of termination (if applicable), before the 90 day period is up.  The notice period itself, however, may extend beyond the 90 days.

Note 100% sure? Get legal consultation!

An employer shouldn’t just insert clauses into an employment agreement without getting specific legal advice; you don’t want to run into issues in the future.