An employee was given two weeks’ notice of his employer’s decision to dismiss him under a trial period provision in his employment agreement. The employee claimed that he was entitled to three months’ notice upon the termination of his employment and was therefore unjustifiably disadvantaged by his employer.

The Employment Relations Authority rejected the employee’s personal grievance claim for unjustified disadvantage.

The ERA found that the employee’s employment agreement was silent as to the notice period required for termination under a trial period. The employer had therefore relied upon the Misconduct/Substandard Work performance notice period of 2 weeks.

When an employment agreement does not expressly provide for a notice period, a reasonable period of notice is inferred.

The ERA noted that there is no mechanical yardstick as to what constitutes reasonable notice. When deciding what is a reasonable period of notice, the ERA will look at the following factors:

·         The nature of the employment;

·         The character of the employment relationship;

·         The seniority of the position;

·         The length of service of the employee;

·         The age of the employee;

·         The availability of other employment for a person of the employee's experience and qualifications or training; and

·         The individual circumstances of the particular employer and employee.

The ERA held that the 2 week notice period was reasonable in these circumstances as the employee was aware that his employment was uncertain and was not guaranteed as extending beyond the statutory 90 day trial period.

The preferable course is to include a specific notice period in the agreement so there is no argument over the length of notice that has to be given.