Good Stuff

Is the trial period valid if the agreement is missing?

Have you managed to employ a slacker? Are they still in their trial period?


But, have you misplaced the signed employment agreement?

Oh no.
Now what?

Recently I had this question:

A month ago, we employed a new guy, a young trainee. The first week he was sick on the Friday and the following week he missed a day. Last week Wednesday he left in the middle of the day and didn’t come back, he just disappeared. He wasn’t at work on Thursday or Friday, because he had some kind of domestic issue with his girlfriend.(Sigh)

Yesterday (Monday) one of your employees saw him shopping, and he said he had just moved to a new house. And then today he is not in, and said he’d be in tomorrow. (Sigh!!)

We have him under a trial period, but I can’t find a copy of the signed agreement. I know he signed it, but I can’t find it.

Can he be dismissed tomorrow under the trial period clause? I’m done.

My advice: Be careful.

If he signed this employment agreement before his first day of employment, you can terminate him within the first 90 days of his employment.

Did he sign the agreement? How do you know?

If you’re unsure, or you can’t find the agreement, then do a bit of investigation before you talk to your employee.

Do this:

STEP 1: Find all the correspondence between you and your employee, before he started to work for you. Look for evidence that he:

  • Knew he was going to be on a trial period clause after he started his employment – this may be outlined in the letter of offer.
  • Received a copy of his terms and conditions of employment (which included a valid trial period clause) – you could have attached it to an email – print it out and have a read of it to make sure it has a valid trial period clause
  • Was told to sign the agreement and get it back to you before his first day on the job – again, check the letter of offer
  • Track down who may have received the signed agreement before he started – if someone can attest to the fact that the agreement was signed and received, then all is well.


So, now you at least know that you have given him a heads up that he would be under a trial for 90 days, and that he knew this before he started to work for you. Legally speaking this is part of the strict rules that apply to trial periods. You see, trial periods are voluntary, and are only valid if agreed between you.

STEP 2: Approach your employee and ask him if he knew that he agreed to work for you under a trial period. Wait for a yes.

If he agrees that he is under a trial period, then you can let him know that it’s not working out, that you are terminating his employment under the trial period clause, and that you are giving him notice (whatever is stipulated in the agreement).

If you get a no?
Then you face the risk that he will dispute the fact that he is under a trial period clause, and you will need to prove it. You’ve already done your homework, above, so you can tell him about that, and ask him for a copy of that signed agreement, so you can prove to him that it’s all above board.

Risk: If you just terminate him, without a signed copy of the agreement, you run the risk of him raising a personal grievance for unjustified dismissal. If you still want to go ahead and dismiss him tomorrow, despite this, you can, but know that there is a risk that he may raise a successful grievance.


Steps for the future:

So, in future I would suggest that get yourself organised before people start their employment. Keep good records, and make sure your trial period clause is valid.


Call Melony if you have a quick question, or if you want to have a deep and meaningful conversation, set up a meeting. Both are free for new employer clients.

Negative team member who must go?

Do you have a person who’s failing to meet expectations, putting you in awkward situations with clients and spreading negativity?
You’ve raised points with her in the past, but nothing seems to be changing. In fact, it’s just getting worse. She’s insinuated she’s prepared to leave by verbally suggesting a ‘parting of ways’. But she won’t hand her notice in?!
You want her to leave the business she’s too troublesome to keep on.
Now what?
All you want to do is say: Sorry, your services are no longer needed. Collect your stuff, you will be paid your notice period. Then escort her out.
Is that the sort of thing you were thinking of doing?

My advice: Be careful.
Best thing to do it to take control of the situation.
She’s suggested the parting of the ways and then failed to give notice because she’s hoping for a pay-out. So, pay her off and get rid of the problem once and for all.
If you decide to go in that direction, you can seal the deal with a record of settlement (an exit agreement). This way you can stop her from raising a future grievance and stop her from making any public negative comments about the company.
The problem just goes away, at a (controlled) cost.


If you do this, you also control the timing. If you wait for her to resign, she controls the timing and continues to be a problem with clients and staff.
You start the process for poor performance/behaviour. It’s the long and slow way. She’ll keep misbehaving and performing below standard, giving you more than enough opportunity to work the process.

Whatever you do, act now. Every minute you wait just makes the situation drag on longer.

3 options when staff ignore the notice period

When an employee resigns and gives short notice instead of the period stated in the agreement, what are your options?
Can they just ignore the agreement? Can they just do this without consequences?
On the flip side, if you tried to cut their notice short, you’d have a personal grievance in your inbox in a palpitating second. This is always a disappointing and frustrating situation for employers.
You are right!
They’ve breached the agreement. But, if you make a big deal about it, you end up with a disgruntled employee in your business for the full notice period! They can get up to all sorts of mischief in the remaining weeks!
So, what can you do with this tricky situation?
Your 3 response options:


  1. Friendly – Grab the agreement and check all the clauses about termination and notice. Make sure you are 100% right about the period of notice. Then have a friendly conversation (or as friendly as you can manage under the circumstances!!!) about it. Try to find out why they think they can give short notice if the agreement says otherwise? Have the agreement there and show them the clause. Maybe they don’t even know this is a potential breach of the agreement? Tell the departing employee the impact of the shorter notice will have on you. You won’t have their replacement in place within that short time-frame, and their colleagues will be under pressure. Best outcome: the relationship stays intact while they work out the full notice. Worst case: they work shorter notice, knowing you could’ve gone after them for breach of agreement, but didn’t. You get to be right, if nothing else. This also sends a warning to other staff about your rights!

  3. Pissy – If you can, because it’s in the agreement, and if the relationship is already slightly strained, urge the departing person to work out their full notice. Tell them you may reconsider a positive future reference if they don’t, because they are breaching their agreement with you! Tell them you would have to share that fact with anyone who asks. This may do two things: Firstly, it may keep them in line during the notice, stop them doing stupid things to disrupt your workplace. Secondly, they’d work out the full notice, which is what you want. Downside: you end up with a person in your business who does not want to be there. Can you trust somebody who you are trying to restrict?

  5.  Shitty – I’d only suggest this option if the relationship is very strained, and there is the real potential of a personal grievance. As a ‘counter’ you could pursue them for breach of agreement. This is very uncommon, but not unheard of. It comes with a whole herd of risks, and costs.

For point 2 and 3, I’d recommend letting them go as quickly as possible. If they’re in a job which isn’t critical to the business it should be possible to cover for their absence, as you would if they were ill. If they are critical to the business, there is a danger they may cause harm during their final phase.
• If you have a valid forfeiture clause in the agreement, you may be able to deduct the notice not worked, from their final pay.
• If you find people constantly give you short notice, change the employment agreement and put in some potential penalties in place.
• Shorten the notice period, so you’re not constantly disappointed.
Every business loses employees to somebody else, but they also take employees from somebody else. We want our new staff to start as quickly as possible, but also seek to delay those going – who, it must be said, have changed their loyalty status already.
Sure – in the ideal world, everyone gives full notice, but the reality is they don’t!

Awkward consultation situation

The consultation period can cause problems for business owners.
Once you have that first ‘your job is at risk’ meeting with your employee, you might get stuck in awkward limbo for the following few days during consultation. By that time your employee knows their job may well go and they will be angry or upset.

How do you handle this so there’s less discomfort all round?
You wanna see if you can give your employee some time away from work. But be careful, because you don’t want them to think you’ve sent them home because you already decided the outcome of the consultation.
Do this:
At meeting, tell the employee: go home and think about this (not to be confused with forcing them to stay home!!!). Tell them they can choose to stay home to reflect until it’s time for the feedback meeting (in 48 hours). Make it paid ‘special leave’. If work needs to be covered then treat it the way you would any holiday cover but don’t reallocate work officially until it’s all done and dusted.
By doing this, you can also prove that they’ve had enough time to think about the proposal before the feedback.
Best get on with it. No one, especially you, can move on until its done.
Call Melony for a quick question, or set up a meeting to discuss your situation in depth.