90 Day Trial Periods For Employees

December 13, 2023



90 Day Trial Periods For Employees

The prospect of a new job can be both exciting and nerve-wracking. In New Zealand, many employers utilise the 90-day trial period. This is for the employer to assess an employee's suitability for a role, and gives the employee a chance to see if they are right for the role. However, before you agree to such an arrangement or if you find yourself dismissed under a 90-day trial, there are essential facts you should be aware of. At Lawhub, we believe that informed employees (or potential employees) make better choices, so let's dive into the intricacies of 90-day trial periods and the rules that surround them.

Who Qualifies for a 90-Day Trial Period?

Only employers with 19 or fewer employees at the commencement of the employment agreement can legally employ someone on a trial period for the initial 90 calendar days of their employment. Importantly, an employee cannot be placed on a trial period if they have worked for that same employer before. To be considered a valid trial period, it must be: 

  • Agreed upon in the employment agreement before the employee starts work.
  • If you sign the agreement on the day you start work, then the trial period may be voided, because you have already started work, therefore, you are an existing employee.
  • Accompanied by a valid notice period in the employment contract.
  • Consensually agreed upon by the employer and employee in good faith. 
  • Stated in the employment agreement that: 
  • from the very start of their employment, the employee will be on a trial for a set period which isn’t more than 90 days (but can be less). The exact time period must be stated, e.g. it could be 20 days, or 60 days. 
  • the employer can dismiss the employee, and the employee can’t bring a personal grievance or other legal proceedings about their dismissal.

What Are The Rights And Responsibilities Of The Employee During A 90 Day Trial?

Employees on a valid trial period maintain all minimum employment rights and responsibilities, except for the right to bring a personal grievance for unjustified dismissal. They should be treated on par with other non-trial period employees. However, there are exceptions to the rule and your rights.

Even during a trial period, an employee retains the right to bring a personal grievance on grounds other than their dismissal. This includes discrimination, harassment, bullying, pressure about union membership, continuity of employment, unjustifiable disadvantage, lack of a written employment agreement, or a missing notice period in the contract. In such cases, the trial period may be deemed void. 

If the employer doesn’t give the employee notice by the end of the trial period, then they are no longer on trial and their employment will continue. They then gain the full protection of employment law, including the right to bring a personal grievance for unjustified dismissal if the employer decides to terminate their employment at a later date.

What Is The Dismissal Notice For 90 Day Trials?

If an employer decides to dismiss an employee during the trial period, they must provide the appropriate notice. The notice should align with what's stipulated in the employment agreement. If the correct notice isn't given, the trial period may be invalid, and the employee's employment continues. 

The employer also must give notice within the trial period, even if the actual dismissal takes effect after the trial period ends. Hence, if your trial period is 60 days and the notice period is 7 days, the employer must give notice to the employee before the 60th day, even though the employee won’t leave until the end of their notice period.

If you were dismissed with incorrect notice, you should speak to a lawyer as you could have a case for a personal grievance for unjustified dismissal.

Additional Considerations

  • Prior to being hired, the employee must be given sufficient time to consider the employment agreement and the trial period's implications. Consult a lawyer if you are unsure of anything in the employment agreement. 
  • A trial period can last up to 90 calendar days, but it can be shorter.
  • If the employee remains employed after the 90 days, they become permanent staff.
  • A reason for dismissal isn't mandatory, it's advisable that employers communicate the reason to the employee in the spirit of good faith but it is not required by law.
  • Before you sign the dotted line on a 90 day trial period, it's best to consult with employment lawyers/advocates. Not all situations warrant the use of trial periods.

Navigating The 90 Day Trial Doesn’t Need To Be A Struggle

While 90 day trial periods can offer employers a tool for assessing new employees, it's crucial for both employers and employees to understand the legal parameters and rights involved. By staying informed and seeking professional advice when needed, you can navigate the complex terrain of employment law with confidence.

At Lawhub, we're committed to helping employees understand their rights and make informed decisions. Whether you're new to a job or a seasoned employee, you have rights to protect you in the workplace.

For any employment-related queries or concerns, Lawhub is here to assist you in upholding your rights and ensuring a fair and just workplace environment.

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