Can I Fight My Dismissal If I Was On A 90-Day Trial Period?

The 90-day trial period is one of the most talked-about, and often misunderstood, features of New Zealand employment law. Many employees believe that if they are dismissed within a trial period, they have no rights at all. That’s not quite true.  While trial periods do limit your ability to bring a personal grievance for unjustified dismissal, they are not a free pass for employers to act unfairly or unlawfully.

What Is a 90-Day Trial Period?

A 90-day trial period allows an employer to dismiss a new employee within the first 90 days of employment, and the employee cannot bring a personal grievance for unjustified dismissal.  However, this only applies if the trial period is properly set up and correctly used.  If the employer gets it wrong, the dismissal can be challenged.

When is a Trial Period Valid?

For a trial period to be enforceable, all of the following must be in place.  

The Agreement Must Be Signed Before You Start Work

The trial period must be included in your employment agreement, and you must sign that agreement before your first day of work.  If you start work before signing, even by a few hours or a single shift, the trial period is likely invalid.

The 90 Day Trial Clause Must Be Clear

The agreement must clearly state:

• That it is a trial period under the law

• That it lasts for no more than 90 days

• That you cannot bring a personal grievance for unjustified dismissal

If this wording is unclear or incomplete, the clause may not hold up.

You Must Be a New Employee

Trial periods only apply to new employees.   If you have already worked for the employer (even in a casual or temporary role), a trial period may not be valid.

The Employer Must Follow the Law in Dismissing You

Even within a valid trial period, the employer must give notice as stated in the agreement, act in good faith, and follow any agreed process.  

When Can I Challenge a Dismissal During a 90-Day Trial?

Even if you were dismissed within a 90-day trial period, you may still be able to challenge it in certain situations.  Here are the key scenarios where that might be possible.  

The Trial Period Was Not Valid

This is the most common way employees successfully challenge a dismissal.  If the trial period is invalid, you regain your full rights, including the right to bring a personal grievance for unjustified dismissal.  For example: 

• You signed the agreement after starting work

• The trial clause was poorly drafted

• You were not actually a “new” employee

It is important to check the timing carefully. Even a small error (like signing after induction starts) can make a big difference.

You Were Not Given Proper Notice

Even under a valid trial period, the employer must still give the correct notice period set out in your agreement.  If they dismiss you immediately without notice (when notice is required), or fail to pay notice in lieu, you may have a claim for breach of contract or wages owed.

The Employer Acted in Bad Faith

Employers must act in good faith, even during a trial period.  This includes being honest, communicative, and not misleading.  You may have grounds to challenge if:

• The employer misled you about the role,

• They had already decided to dismiss you before the trial began, or

• They failed to raise concerns and then suddenly dismissed you.

While you may not be able to challenge the dismissal itself (if the trial is valid), you may still raise a grievance about how you were treated.

The Dismissal Was Discriminatory

Trial periods do not protect employers from discrimination claims.  You can still bring a personal grievance if you were dismissed for reasons such as gender, race, age, disability, or religious beliefs.  For example, if you are dismissed shortly after disclosing a medical condition or pregnancy, that could raise serious legal issues.

The Dismissal Was Retaliation

If you are dismissed for asserting your legal rights, such as raising a health and safety concern, asking about unpaid wages, or querying your employment, this may be unlawful.  Even within a trial period, retaliation can be challenged.

The Trial Period Was Used Improperly

Employers cannot use trial periods as a shortcut to avoid fair process entirely.  While they are not required to follow a full disciplinary process, completely arbitrary or abusive behaviour may still be open to challenge.

What Can’t I Challenge During My 90-Day Trial?

If the trial period is valid and properly applied, you generally cannot challenge the dismissal simply because it was unfair or unexpected.  That means no claim for unjustified dismissal, no argument that the employer didn’t give you enough warnings, and no requirement for a full investigation process.  This can feel harsh, but it reflects how the law is structured.

How to Challenge a Dismissal During a 90-Day Trial

If you think your dismissal may be challengeable, here’s how to approach it.  

Step 1: Review Your Employment Agreement

Start by checking when you signed it, whether the trial clause is clearly written, and what notice period applies.  This is often where issues arise.

Step 2: Write Down What Happened

Record key details such as your start date, when you signed the agreement, what feedback (if any) you received, and how the dismissal was communicated.  This helps build a clear timeline.

Step 3: Request Your Employment Records

You can ask your employer for notes about your performance, emails or messages relating to your role, and any documentation about the dismissal.  This can reveal whether the process was handled properly.

Step 4: Raise a Personal Grievance (If Applicable)

If you believe the trial period is invalid or another issue applies (like discrimination), you can raise a personal grievance.  This must usually be done within 90 days of the dismissal.  Your grievance should clearly state what happened, why you believe it was unlawful and what outcome you are seeking.  

Step 5: Seek Advice

Employment law can be technical, especially around trial periods.  Consider speaking to an employment advocate, or a union (if you are a member).  Early advice can make a significant difference.

FAQs

Can I bring a personal grievance during a trial period?

Only in limited situations. If the trial period is valid, you generally cannot bring a grievance for unjustified dismissal. However, you can still bring claims for discrimination, harassment, or other breaches.

What if I signed my contract on my first day?

It depends on timing. If you signed before starting work, the trial may still be valid. If you had already started working (even briefly), the trial period is likely invalid.

Does my employer need to give warnings before dismissing me?

No. During a valid trial period, employers do not have to follow a full disciplinary process or give formal warnings.

Can I challenge the dismissal if it felt unfair?

Not usually. If the trial period is valid, “unfairness” alone is not enough to challenge the dismissal.

What if I was dismissed by text or email?

This may feel abrupt, but it is not automatically unlawful. The key issue is whether the trial period is valid and whether proper notice was given.

Can I get compensation?

Only if you successfully challenge the dismissal (for example, by showing the trial period was invalid or the dismissal was discriminatory).

What is the biggest mistake employees make?

Assuming they have no rights and doing nothing. Many employees could challenge their dismissal but miss the opportunity by not acting within the 90-day timeframe.

A 90-day trial period changes the rules but it doesn’t remove them entirely.  Employers must still set up the trial correctly, follow basic legal requirements, and act in good faith.  If they don’t, the dismissal can be challenged.

If you’ve been dismissed during a trial period, and believe the trial period was not valid or your employer didn’t act in good faith, get in touch today for a free consultation.  MathewsWalker.co.nz | 0800 612 355

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