90 day period rules

Trial Periods are Complicated.  There are very strict rules about how they are used. You still have rights.

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The 90 day trial period is a period when an employer can dismiss the employee without the employee being able to raise a personal grievance for unjustified dismissal.

If you have been dismissed during your 90 day trial and you want to know if it’s legal or fair give us a call. We will check it for you.

It’s complicated:

The Trial Period is not an automatic right of employers, it must be done correctly:

90 Day Trial Rules

  • New Law from 6 May 2019: Only an employer with 19 or fewer employees (at the beginning of the day on which the employment agreement is entered into) may employ a new employee on a trial period for the first 90 calendar days of their employment. 
  • The worker must be a new employee.
  • There must be a written employment agreement that contains a trial period clause. That clause must state the exact time period and that during the trial the employer can dismiss the employee and the employee can’t bring a personal grievance or other legal proceedings about their dismissal.  (Please note all your other rights as an employee remain and you may still raise a personal grievance on other grounds).
  • The agreement should state an official start date for a 90-day trial period. –
  • The employment agreement must be signed by the worker before they start work. (If the worker starts at 9am and their agreement is signed at 9.05am on the same day, the trial is invalid)
  • The worker must have had time to get independent legal advice on the employment agreement.
  • If required, notice under the trial period must be given within the 90 days.
  • When the trial period finishes, unless the employee has been dismissed they become a permanent member of staff.

Can my employer fire me within 90 days even if I haven’t done anything wrong?

As long as the employer gives you notice of dismissal within the trial period they can dismiss you without consulting with you beforehand and for any reason. You can not bring a personal grievance against the employer in relation to the dismissal.  But, you can bring a personal grievance claim based on other grounds such as discrimination, harassment, or to recover unpaid wages. Aside from the employer’s ability to dismiss you you should not be treated any differently from any other employee.

If the trial period isn’t going well and the employer decides to dismiss the employee, they must give notice to the employee that they will be dismissed.

The notice:

  • must be the amount of notice in the employment agreement. If the employer doesn’t give the employee the right amount of notice then the trial period is invalid and the employee will continue to be employed (or if they were dismissed, they could bring a personal grievance for unjustified dismissal). For example, the employer can’t tell the employee that they are dismissed effective immediately if there is a 1 week notice period in their employment agreement.
  • must be given within the trial period, even if the actual dismissal takes effect after the trial period ends. For example, if the trial period is 8 calendar weeks and the notice period is 1 week, the employer must give notice to the employee before the end of the eighth week, even though the employee won’t leave until the end of their notice period.
  • doesn’t have to have reasons for the employee’s dismissal.

As long as all the 90 day trial rules are followed the employer is not required to give reasons for the dismissal.

Check your employment agreement to confirm there is a trial period clause.

Unless it’s in writing and signed by both employer and employee before the employee starts, the trial period isn’t valid.

If you are an Employee and have been dismissed under the 90 day trial period and you are not sure it’s fair contact us and we will check your rights.

sources: Citizens Advice Bureau, stuff.co.nz, Employment New Zealand, The leading source of information on employment in New Zealand.

Call us on 0800 669 466 or email us using the form below so we can connect you with one of our team to help.

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