Is the trial period valid if the agreement is missing?

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

Yes?
 

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.

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