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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.
The Trial Period is not an automatic right of employers, it must be done correctly:
If an employer wants to hire someone for a trial period it must be set out in writing (usually as a clause in the employment agreement). The employment contract must be signed by both parties before the employee begins working for the employer. If the employer decides to dismiss the employee they must give notice of dismissal to the employee before the end of the trial period: (even if the dismissal does not actually happen until after the trial period ends). An employee working on a trial period is entitled to the usual minimum employment rights e.g. to be paid for work they have done, sick leave, paid public holidays.
When the trial period finishes unless the employee has been dismissed they become a permanent member of staff.
90 Day Trial Rules
- The worker must be a new employee.
- There must be a written employment agreement that contains a trial period clause.
- The trial period clause must comply with the requirements of the Employment Relations Act 2000.
- 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 9 am and their agreement is signed at 9.05 am 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.
I’m employed under a 90 day trial period. 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.
- 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. You will need to send us your employment agreement and any correspondence
sources: Citizens Advice Bureau, stuff.co.nz,
Frequently Asked Questions about Trials
What’s the difference between a trial period and a probationary period?
Is the 90 day trial period still valid in NZ?
Yes, but only businesses with 19 employees or less can use the trial period.
Can you extend a trial period?
No, you cannot extend a trial period beyond what was stated in your employment contract.
Does the first 90 days include weekends?
What is a 90 day trial period?
A 90 day trial period is a clause an employer may put in your employment contract which, when used correctly, enables the employer to take on a new employee on a trial basis for a period of 90 days. If, for any reason, the employment relationship does not work out within the first 90 days the employer may end the employment relationship without the risk of the employee raising a personal grievance.
Watch our simple explainer video on ‘What is a 90 Day Trial’
I have been dismissed with no notice on my trial period, is that fair?
There should be a clause in your employment agreement which states how much notice you will be given if you are dismissed during your trial. In general this means that if the employer wants you to leave straight away (rather than working through your notice period), then they must pay you for the notice period.
The notice period for your trial period can be different from the notice period once you are finished the trial period, as long as the notice period for the trial is specified in the employment agreement. If the notice is not specified for the trial then your employer should adhere to the notice period in the employment contract.
If you are confused about your notice period, or have been dismissed on the spot without any notice you can call us free to find out if there is a case for unfair dismissal.
What are the employment law rules for a 90 day trial period?
If the 90 day trial clause is not used correctly, an employer may be shocked to find out that the employee can still raise a personal grievance or claim unfair dismissal despite the 90 day trial clause being present in the employment contract.
A trial period can be less than 90 days
We refer to the 90 day trial clause, but the number of days can be less than 90 days, and the exact number of days must be specified on the employment agreement.
The 90 day trial clause may be invalid if:
- You were not informed in writing that your employment contract contained a 90 day trial period before you started work. Or if you signed the employment agreement after you had already started work (even by a few hours)
- You have previously worked for the employer
- Your employer has more than 20 employees
- You were not advised that you had the right to seek independent legal advice or given time to seek advice before signing the contract
The clause didn’t include the correct wording of the Employment Relations Act 2000 Section 67A :
67A When employment agreement may contain a provision for a trial period for 90 days or less
(1) An employment agreement containing a trial provision may be entered into by a small-to-medium-sized employer and an employee who has not previously been employed by the small-to-medium-sized employer.
(2) For the purposes of this section and section 67B,—
small-to-medium-sized employer means an employer who employs fewer than 20 employees at the beginning of the day on which the employment agreement is entered into trial provision means a written provision in an employment agreement that states, or is to the effect, that—
(a) for a specified period (not exceeding 90 days), starting at the beginning of the employee’s employment, the employee is to serve a trial period; and
(b) during that period, the small-to-medium-sized employer may dismiss the employee; and
(c) if the small-to-medium-sized employer does so, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.
Section 67A: replaced, on 6 May 2019, by section 36 of the Employment Relations Amendment Act 2018 (2018 No 53).
How much notice do I have to give if I leave my job during my 90 day trial?
Every employment agreement requires that the parties give each other notice to end the relationship.
The notice you give should be the same as the notice that your employer would have to give you according to the trial period clause in your agreement. As the employee you also should act in good faith. If you are unhappy in your new job we would encourage you to have a conversation with your employer. If you leave without giving the notice period that is set out in your employment agreement the employer may deduct wages in lieu of notice. In the event that the employer suffers a financial loss as a result of you failing to give notice the employer may take action in the Employment Relations Authority to recover those losses and to seek a penalty. If you find yourself in the position of wanting to leave and are unable or unwilling to give notice you should seek legal advice from an employment lawyer or advocate. It’s free to call us to discuss your situation with us.
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