If you’ve just started a new job and you’re on a 90-day trial, it’s important to understand your rights and what the trial period really means. The 90-day trial period can seem intimidating, but with the right information, you’ll know where you stand.
What is a 90-Day Trial Period?
A 90-day trial period is a provision in New Zealand employment law that allows employers to hire someone new and assess their suitability for the role within the first 90 days of employment.
If the employer feels the employee isn’t a good fit during this time, they can dismiss them without the employee being able to bring a personal grievance for unjustified dismissal. However, this only applies if the trial is valid and legally enforceable, and the employer follows the correct procedures. Here's what you need to know.
What Makes a 90-Day Trial Valid?
For a 90-day trial period to be legally valid, certain requirements must be met. If any of these are missing, the trial period won’t protect your employer from a claim of unjustified dismissal:
It must be written in your employment agreement – The 90-day trial clause has to be clearly stated in your signed employment contract before you start work. Verbal agreements or clauses added after you’ve already started working aren’t valid.
The agreement must state that you can’t bring a personal grievance for unjustified dismissal – The clause must explicitly inform you that you are giving up your right to challenge the dismissal on the grounds of unfairness.
You must sign the agreement before starting work – If you’ve already started the job and the trial clause wasn’t in your contract at that point, it won’t hold up in court. Your employer should also give you the opportunity to have your contract reviewed before you sign it.
You can't have worked for the employer before - The trial period only applies to employees who are new to the business. If you’ve worked for the employer before, even in a different role, they cannot put you on a 90-day trial again.
What Are Your Rights During the Trial Period?
Even if you’re on a 90-day trial, you still have a number of legal protections. Employers cannot treat you unfairly during this time or breach your rights as an employee. Here’s what you’re still entitled to:
Fair treatment – Just because you’re on a trial doesn’t mean the employer can mistreat you. You still have the right to a safe and respectful workplace.
Minimum employment rights – Your employer must still comply with all other aspects of employment law, including providing the minimum wage, holiday pay, rest breaks, and paying overtime if applicable.
Dismissal for discrimination or harassment – If you’re dismissed during the 90-day trial period for reasons related to discrimination, harassment, or any other unlawful reason, you may still have grounds for a personal grievance claim.
Notice of dismissal – Your employer is required to give you notice of dismissal as outlined in your employment agreement. If your contract says they must give two weeks’ notice, they must follow this even during the trial period.
What Happens If You’re Dismissed?
If your employer decides to dismiss you during the 90-day trial, they must follow certain steps to ensure the dismissal is fair:
Reasonable process – The employer should inform you that they are considering dismissal and give you the chance to respond to their concerns, even if they don’t have to justify the decision the same way they would outside the trial period.
Written notice – The dismissal must be communicated in writing, and you must be given the correct notice period as specified in your employment contract.
If the dismissal process isn’t followed correctly, you may be able to challenge it despite the 90-day trial clause. For example, if you weren’t given proper notice or the process wasn’t carried out fairly, this could invalidate the trial period protections for the employer.
What if the Trial Period Isn’t Valid?
If the 90-day trial period wasn’t correctly included in your employment agreement, or your employer failed to follow the law, you can challenge a dismissal as though the trial period didn’t exist. In this case, you may be able to file a personal grievance for unjustified dismissal.
While a 90-day trial can be a useful tool for employers, it doesn’t leave you without rights as an employee. Knowing your entitlements and ensuring that your employer is following the law can help you feel more secure in your new role. If feel unsure about your 90 day trial, don’t hesitate to seek professional advice (mathewswalker.co.nz | 0800 612 355) - it’s better to address concerns early rather than letting things escalate.
Disclaimer: The information provided in this blog is for general informational purposes only and should not be considered legal advice. While we strive to keep the information accurate and up to date, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability, or availability with respect to the blog or the information, products, services, or related graphics contained on the blog for any purpose. Any reliance you place on such information is therefore strictly at your own risk. For specific legal advice tailored to your situation, please contact a qualified legal professional.
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