Worker criticizes trial period validity after dismissal, claims it's unenforceable

The Employment Relations Authority (ERA) recently dealt with a case involving a worker who claimed unjustified dismissal after being terminated during a trial period.

The dispute centred around the validity of the trial period provision in the employment agreement and whether it was properly implemented.

The worker argued that the trial period couldn't be enforced, claiming that he hadn't explicitly agreed to the trial period and, crucially, hadn't signed his employment agreement before starting work.

Trial period dispute

The case involved a security guard who was employed from 6 May 2023 until 17 May 2023. During this brief period, the worker only attended work for three days due to a combination of illness and injury.

On 17 May 2023, when the worker sought further unpaid leave, the employer terminated his employment, invoking the right to dismiss him within a 90-day trial period.

The worker's main argument was that the employer couldn't rely on the trial period provision because he hadn't agreed to it and hadn't signed his employment agreement before starting work. This led to the worker filing a claim of unjustified dismissal with the ERA.

Employer's defence and worker's absence

The employer said that the trial period provision was valid and had been agreed upon by the worker prior to starting the job. They argued that the termination was carried out correctly in accordance with the trial period provision.

The worker was initially represented by an advocate who lodged the statement of problem with the ERA. However, on 20 August 2024, the day before the scheduled Investigation Meeting, the advocate advised that they no longer had instructions, having not had contact with the worker for several weeks.

The worker then failed to attend two scheduled investigation meetings with the ERA. The Authority member noted:

"I adjourned the Investigation Meeting and rescheduled it for 30 August 2024. I then produced a minute recording the adjournment and advising [the worker] that if he did not attend the rescheduled Investigation Meeting, I would proceed without him."

Validity of the trial period

According to records, the ERA's investigation revealed several key points about the employment process:

1. In early 2023, the worker contacted the employer enquiring about work as a security guard.
2. The employer initially offered casual employment in April 2023, which the worker did not accept.
3. On 28 April 2023, the worker again enquired about work.
4. On 1 May 2023, the worker and employer met to discuss possible employment. The employer explained that any employment would be subject to a 90-day trial period.
5. The employer provided an employment agreement, which they reviewed together. The worker was given a copy to take away and review.
6. Later on 1 May 2023, the worker emailed accepting the employment agreement.

Based on these events, the Authority member concluded:

"[The worker] must have known that the trial period provision would be included in the employment agreement as this was discussed with him in the meeting on 1 May 2023."

The Authority also found that:

"Both [the worker] and [the employer] intended the employment agreement to become binding on the exchange of emails; evidenced by [the employer's] email and the fact that [the worker] sought to rely on his acceptance of the terms and conditions of employment as proof of employment for the new tenancy he was entering into."

Is the trial period enforceable?

Based on the evidence presented, the ERA determined that the trial period was valid and properly implemented. The Authority member stated:

"I am satisfied that the trial period provision contained in the employment agreement that [the worker] accepted was a compliant provision; that is, it met the requirements of the Act."

Consequently, the worker's claim of unjustified dismissal was dismissed. The Authority member further explained:

"Therefore, pursuant to s 67B of the Act [the worker] cannot bring a claim of unjustifiable dismissal; I do not have jurisdiction to determine the claim."

This case serves as a reminder to both employers and workers about the importance of clearly understanding and agreeing to employment terms, particularly regarding trial periods, before starting work.