Everything You Need to Know About 90‑Day Trials and Probation Periods in New Zealand

When you start a new job, your employment agreement might include a 90-day trial or a probation period. These are ways for your employer to check whether you’re the right fit, and for you to see if the job works for you. But they also come with rules that you need to know to protect your rights before signing, while working through one, and if you are dismissed during one. 

What is the difference between a 90‑day trial and a probation period?

• A 90‑day trial period (often just “trial period”) is a period of up to 90 calendar days, agreed in advance, during which an employer can assess whether a new employee is suitable.

• A probation period is similar in purpose (to assess whether you can do the job, or whether you’re a good fit) but it is more flexible, usually longer (if agreed), and with more protections for you.

There are important differences. With a 90-day trial, the employer has more ability to dismiss without having to follow the full process for unjustified dismissal. With probation, the employer must follow fair process and give reasons. 

When we asked Mathews Walker advocates about probationary and trial periods, they commented that many of our clients don’t realise that a trial period isn't as universally protective as it sounds for employers, nor does it provide a get out of jail card for all employer behaviour.  So it is worth seeking professional help from an advocate if you find yourself in a dispute or are dismissed during a trial or probation period.   

What do you need to consider before signing a contract with a 90-Day trial or probation period?

Here are some key points to watch out for before signing a contract with a trial or probation period:

It must be in your employment contract.  If there's a 90‑day trial period, it must be in writing, in your employment agreement, before you start work. You need to see it, understand it, and agree to it.  Think carefully what it means, ask questions if you are not clear and get advice if you have concerns about what is included.  

The clause must specify the length of the trial period.  The contract must specify how long the trial or probation period is (number of days), that the employer can dismiss during it, and that you cannot bring a personal grievance for dismissal (for unjustified dismissal) if it's done under the trial clause.

You must sign the contract before you start work.  If you start without having signed, the trial clause might be invalid.

Your employer must give you notice if they dismiss you.   Even during a trial, the agreement should say how much notice you or the employer must give to end the employment. If no notice period is in the agreement, then a "reasonable" period applies.  

You still get all the minimum employment rights.  This includes pay, leave, rest breaks, safe work environment, etc.

You are still protected from unjustifiable disadvantage. This includes discrimination, harassment, and bullying.

Trial periods can only be used for new employees. That means you haven’t worked for the employer before in any capacity. If you did, the trial clause may not be valid.

You should always be given a fair chance to read a new contract before you sign it. Make sure that you understand any trial clauses included, take the time to ask questions and get independent advice if you need it.

What do you need to know about working during a 90-Day trial or probation period?

Here are some things to watch out for when working through a trial or probation period:

Feedback and performance

Employers should tell you clearly what’s expected including what tasks are required of you, what are the minimum standards of performance and what is acceptable behaviour. You should get feedback during the trial period of probation. If something is not going well, your employer should let you know so you can try to fix things.

Training and support

If there are gaps in your skills or you need more help, your employer should provide support and training. They can’t just dismiss you for problems that you weren’t told about or weren’t given a reasonable chance to improve. This is more relevant for probation periods, but good practice under trials too.

Keep records

It’s a good idea to keep notes of meetings, feedback, what was expected, any warnings or discussions. If things go badly, these may help you show your side.

Know when the trial or probation ends

If it's a 90‑day trial, once the 90 days are up (and no notice of dismissal was given by then), your employment continues as normal.  If on probation, the period might be longer. There might also be defined checkpoints (for example 3 months reviews) including a review and decision at the end of the probation period.

You have rights during the trial or probation period.

You can bring a personal grievance for issues other than dismissal under a valid trial clause: discrimination, harassment, unjustifiable disadvantage, etc.  You are still entitled to minimum pay, rest breaks, holiday, safe work, etc.

What happens if I am dismissed during a 90-day trial period?

If you are dismissed under a trial clause, here are the rules, and what you can do.

• The employer must give you notice as per your agreement (or “reasonable notice” if none is specified). That notice must be given during the trial period. The final day may be after the trial ends, but the notice must occur before the end.

• The employer does not have to give a reason for the dismissal under trial. That’s part of what defines a trial.

• You usually cannot bring a personal grievance for unjustified dismissal (i.e. saying “you didn’t have a good reason”) under the trial clause. This is a legal exception so long as the trial was valid.

• You can bring a personal grievance for other serious issues: discrimination, harassment, being treated unfairly, etc. If your dismissal was because of any of those, a trial clause doesn’t protect the employer from those claims.  

• If the trial clause was invalid (e.g. not in writing, not signed before starting, ambiguous, trial period too long, or you had worked for them before), then you may have full employment law protections, including unjustified dismissal claims.

• If the trial period is valid, then yes, the employer can dismiss you without having to follow the full unjustified dismissal process. But there are strict requirements for validity. If those aren’t met, you may have grounds for a personal grievance.

  
  

Even though trial periods limit some of your rights, you may still have recourse if things go wrong.  Mathews Walker advocates often help clients who have been dismissed during a 90-day trial.  They can help you review your employment agreement and see if the trial clause was valid or not. Even if the trial period is specified in your contract, it may not necessarily be valid or the employer may not have followed proper process in using it.  

An employment advocate can advise you whether you have a personal grievance claim for unjustified disadvantage or discrimination and can help you write letters or put together evidence.  An advocate can then negotiate with your employer on your behalf and represent you if you go to the Employment Relations Authority (ERA).

One of our advocates recently helped an employee dismissed during their 90-day trial.   The employee was terminated under a valid 90 day trial but the employer did not give written notice as required by the Employment Relations Act 2000. They were able to raise a personal grievance and received compensation for the dismissal. 

What happens if I am dismissed during a probation period?

Probation periods can be longer than 90 days and have more flexibility. They are often used (especially if a trial period cannot be used) for assessing performance. During probation, you have more legal protection. If your employer wants to dismiss you, they usually need to show a good reason, follow a fair process, give you feedback along the way and provide opportunities to improve if your performance is not at the required level.

Employment advocates can help you if your dismissal is unjustified under a probation period. They can help you to identify if you have a case and assist you in preparing a personal grievance.     

Tips to protect yourself during a trial or probation period.  

• Always get a written employment agreement, before you start. Read it carefully.

• Highlight any trial or probation clause. Ask your employer what do I need to do during this period? What standards are required of me? How often will we meet and review?

• Make sure the notice period is in the contract and that you know what it is.

• During the period, ask for feedback: where are you doing well, where need to improve. Don’t wait till the end and be surprised.

• Keep records of your performance, meetings, feedback, requests for support.

• If you feel unfairly treated, discrimination, lack of support, talk to an advocate for advice early.

A 90‑day trial period is a legal tool in NZ that allows employers to try out a new employee for up to 90 calendar days. If the trial clause is valid, the employer can dismiss you during that time without a reason for dismissal. But you still keep basic rights (pay, safe workplace, freedom from discrimination).  A probation period offers more protection and the employer generally must give reasons, allow opportunity for improvement and follow a fair dismissal process.

Before you sign a contract, make sure the trial or probation clause is clearly written and that you understand it.  If you are dismissed during a trial, your ability to challenge depends heavily on whether the clause was valid, whether your employer followed the correct process and whether you were treated fairly.  If you are dismissed during a trial or probationary period, and don’t believe you have been treated fairly, seek help from an expert.  Call today for a free consultation.  MathewsWalker.co.nz | 0800 612 355

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