If you are looking to hire new staff, you will no doubt be grappling with what specific terms should be included in your employment agreements. This will likely include thinking about the inclusion of a trial or probationary provision. If not, please do consider using one as they are super handy.

Here is a quick question and answer section to help with your decision making.

Presumably, they are different, right?

Correct - trial and probationary provisions are very different beasts. Failing to recognise this can be a costly mistake.

Okay, so how then are they different? 

If an employee’s employment is terminated under a valid trial provision, the employee cannot bring a personal grievance claim or legal proceeding in respect of the dismissal. Put another way, the employee is unable to bring a personal grievance claim of unjustified dismissal against the employer. 

When deciding whether to terminate an employee’s employment under a trial provision, an employer is not required to adhere to the good faith requirements regarding: (1) providing the employee with access to information, relevant to the continuation of their employment, about the decision, and (2) an opportunity to comment on that information before the decision is made.

This effectively removes the justification and procedural requirements associated with ordinary terminations for cause.

With probationary periods however the ordinary procedural and substantive justification obligations associated with terminations for cause must be adhered to.

I’ve heard that only employers with 19 or fewer employees can use trial provisions. How do i calculate how many employees I have? 

Read more here.