Every employee must have a written employment agreement. They should be given a copy and a copy kept in their file. These must be able to be produced to a Labour Inspector if requested.

As well as keeping a copy of the final version, the employer must also keep a copy of every draft version given to an employee to consider.

The agreement needs to contain all of the clauses required by law and not contain any illegal provisions.

Getting your employment agreements right does not end when you have a template with all the required clauses. In one case the Employment Relations Authority upheld the employee’s personal grievance claim for unjustified dismissal because the paperwork was not properly completed.

An employee has been dismissed for poor performance under a 90-day trial period policy. The employee was often late to work and failed to follow instructions.

The ERA found that the employee had been given a blank template employment agreement to sign at the beginning of his employment. The agreement did not include a pay rate or his name, and did not include a trial period provision. 90 day trial clauses must be in writing in the employment agreement and signed by both the employer and employee before the employee commences work. Here there was no clause at all in the agreement. The employer could therefore not dismiss the employee without following a fair and reasonable process.

The ERA found that no formal performance management process was undertaken, and noted that the employee was completely unaware that his employment was at risk.

The ERA stated that the case acted as a warning to employers to ensure that their employment documentation is up to date before they decide to take on new employees.

In another similar case there was a 90 day trial provision in the agreement, but the agreement was not signed until shortly after the employee commenced work. It was held that this made the clause invalid (as he had been working before it was signed).

In another case the employee signed the agreement before commencing work, but the employer had not yet signed it. The employer signed it later that first day. This was held to be too late. Make sure you get a fully signed agreement before the employee starts work.

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