Can my employer fire me while I’m on probation? It’s a simple question, but the answer can have a big impact on your career.
If you’ve started a new job on probation, it’s worth understanding what your rights are.
We speak to Jaenine Badenhorst, an associate lawyer with Dyhrberg Drayton Employment Law, who shares her insight on how and when you can be dismissed during a probation period.
Here’s what you need to know.
What’s a probation period?
Probation periods are used to work out if you are suitable for a job, either with a new business or at your existing workplace, “for instance when you are offered a promotion”, Badenhorst says.
A probation period might be a great opportunity to try a new job or to show that you’re suitable for a promotion, but it’s important you know your employment rights while under probation. If you’re unsure about your rights, it’s worth contacting an employment lawyer before signing up for a probation period.
Badenhorst says a probation period must be agreed and recorded in writing (including how long it will last). Badenhorst also recommends both you and your employer agree on the purpose of the probation period and what the potential outcomes are.
How is a trial period different from probation?
A trial period is not the same as a probation period, Badenhorst explains. “A trial period can be no more than ninety days, and only used for a new employee, by an employer who employs fewer than 20 employees” she says. “As long as it has been put in place before work commences, an employer can dismiss you at any time during the trial period and you cannot raise a personal grievance for unjustified dismissal”, she adds.
You can find out more about trial periods at Employment New Zealand.
Employers may use probation periods where they are not legally allowed to use a trial period. Again, it's worth getting some advice if you are unsure about signing up for a trial period.
How is probation different from 'standard' or 'regular' employment?
If you’re on probation, the relationship between you and your employer is in many ways the same if you were a standard employee. “Employees on a probation period, and their employers, have the same rights and obligations as parties to any other employment relationship, and they must deal with each other in good faith throughout”, Badenhorst says.
But there are a couple of key differences. First, there’s likely to be a greater focus on your skills and performance. Employees on probation are being more closely observed and assessed, Badenhorst says, which can be a bit stressful. On the other hand, this supervision can help you develop your skills, she adds. “Employees should receive regular feedback on how they are doing, so that they can focus on the areas which need improvement.” Badenhorst says employers must provide reasonable support and training during a probation period, to give you a fair chance of success.
Next, there’s job security. Accepting a job with a probation period (or a trial period) is less secure than a permanent role, says Badenhorst. “If you do not meet reasonable expectations of the role, your employer may tell you they want you to return to your previous role (if it is a promotion) or that they intend to end your employment”.
If your probation period goes well, you don’t have to do anything – your employment should continue on the existing terms and conditions of your employment, but you won’t be on probation anymore.
What employers should do during the probation period
If you’re on a probation period, your employer should communicate with you clearly, and give you a good amount of support. “Employers must be open and honest about their expectations for a role, regularly discuss how you are measuring up to those expectations and provide you with reasonable support (like training or a mentor)”, Badenhorst explains.
Just like all new employees, if you’re hired on probation, you’re entitled to a safe, fair working environment.
You have rights around being dismissed or ‘fired’ from a probation period, too. Before being dismissed from a probationary role, your employer must have a good reason and follow a fair process, referred to as a performance improvement process (or PIP). “If at the end of the probation period you do not meet the expected standard, it should not come as a surprise to you because your employer should be acting in good faith, by keeping you informed throughout,” Badenhorst says.
If you’re dismissed, your employer has to give you the notice period that’s set out in the agreement you made. And before dismissal takes place, there should be a meeting to give you the opportunity to understand the reason for proposed dismissal, and to give your views.
Being dismissed after a probation period
Once your probation period ends, like all employees, you can only be fired if there is a good reason for the dismissal, says Badenhorst. “Your employer must have a justified reason, such as poor performance or misconduct, and have followed a fair process”, she notes.
If you believe a fair dismissal process hasn’t been followed or there is no reason for the dismissal, you may be able to raise a personal grievance.
You think you’ve been unfairly dismissed. Now what?
You can raise a personal grievance for unjustified dismissal. A personal grievance is a way of formally raising a complaint because you want something to be done about it. There are a few ways you can work through a personal grievance, including talking directly to your employer (either on your own or with help from a support person and representative), going to mediation or lodging a statement of problem in the Employment Relations Authority.
You can read more about personal grievance processes at Employment New Zealand.
“It is sensible to put your grievance in writing, clearly stating the nature of the grievance, the surrounding facts, and what you would like to be done about it,” Badenhorst says.
“An employee must raise their grievance within 90 days of the event or within 90 days of becoming aware of the event, unless the employer agrees to extend the time, or the Employment Relations Authority agrees that exceptional circumstances justifies an extension of time.”
A probation period can allow you to try out a new role and demonstrate that you’ve got the skills for the job. But it’s important to know your employment rights under probation. Again, if you’re unsure about your rights, it’s worth contacting an employment lawyer.
Information provided in this article is general only and it does not constitute legal advice and should not be relied upon as such. SEEK provides no warranty as to its accuracy, reliability or completeness. Before taking any course of action related to this article you should make your own inquiries and seek independent advice (including the appropriate legal advice) on whether it is suitable for your circumstances.
