FAQ: Can I be sacked for no reason on a 90 day trial?
You have started a new job, worked hard and tried to make a good impression. Then your employer tells you it is over. There were no warnings, and they will not explain why.
Can they do that just because you are on a 90 day trial?
This is a common question we are asked at Mathews Walker Employment Law, and it is important to understand what makes a valid 90 day trial period and what your rights are during this period.
It is true that sometimes, yes, your employer can dismiss you without reason on a 90 day trial. But only if the trial is valid and your employer uses it correctly. In addition, a trial period does not give your employer permission to discriminate against you or ignore your other employment rights. Before accepting that you have no options, get the agreement and the dismissal checked.
Does my employer have to give a reason?
During a valid trial period, your employer does not have to prove a good reason for dismissing you. They generally do not have to follow the usual fair dismissal process, give warnings or put you through a performance improvement plan. They are also not required to provide a written statement of reasons under the usual dismissal rules.
This means that being fired without an explanation does not, by itself, make a dismissal while on a 90 day trial, unlawful. Usually, you cannot raise a personal grievance for unjustified dismissal if the employer has correctly relied on a valid trial.
However, employers must still be honest, responsive and communicative. They must not mislead you. You can ask why the job is ending, even though the usual right to written reasons does not apply.
What makes a 90-day trial valid?
Sections 67A and 67B of the Employment Relations Act 2000 set out the trial-period rules. Important requirements include:
You have not been employed by that employer before. A new role with the same employer does not qualify.
The trial starts when your employment starts. It cannot be added later.
It lasts no more than 90 calendar days. Weekends and days off count. A shorter trial is allowed, but it cannot simply be extended beyond 90 days.
You agree to it and sign your employment agreement before starting work. Signing after your first shift is too late.
The clause contains the required information. It must state the length, that the employer can dismiss you during the trial, and that you cannot bring a personal grievance or other legal proceedings about that dismissal, subject to the legal exceptions.
You have a reasonable opportunity to get independent advice before signing. Your employer should tell you about this right and consider issues you raise.
In addition, Immigration New Zealand prohibits trial periods for workers hired on an Accredited Employer Work Visa under the current rules. Get advice if this applies to you.
What reasons might an employer use to dismiss you during a 90 day trial?
“Your performance is not good enough”
An employer may decide you are too slow, making mistakes or struggling with the work. A valid trial can generally allow dismissal without the usual warnings or chance to improve. Training and feedback are still good practice. Any specific promises in your agreement also deserve checking.
“You are not the right fit”
Your employer might think your working style does not suit the team. Under a valid trial, they generally do not have to prove that this is a fair reason. But “not the right fit” cannot be used to hide unlawful discrimination. If you believe the decision to dismiss you is discriminatory, it is worth seeking advice.
“You have been late or broken a workplace rule”
Attendance or behaviour concerns may lead to a dismissal during your 90 day trial. However, a trial does not automatically allow an employer to send you away without notice or notice pay. If they claim serious misconduct justifies immediate dismissal without notice, it is worth seeking advice.
“There is no longer enough work”
A business downturn may lead an employer to end your job. A valid 90 day trial can prevent an unjustified dismissal claim, even where the reason is reduced work rather than performance.
Which reasons are not permitted?
A trial does not remove protection against unlawful discrimination. Dismissing you because of pregnancy, race, religious belief, sex, age or disability may still give you grounds for a discrimination grievance. The facts and any legal exceptions matter.
Other protections also remain. Examples include protection against:
pressure over joining or not joining a union,
retaliation for raising a protected health and safety concern,
retaliation for making a legally protected disclosure about serious wrongdoing, and
adverse treatment for discussing or disclosing pay in circumstances protected by law.
Sexual and racial harassment can also be challenged during a 90 day trial.
Does my employer still have to give notice?
To rely on the trial, your employer must give dismissal notice before the agreed trial ends. Your last day can fall after that date. They must comply with the notice requirements in your agreement, including any requirement for written notice. Sometimes your trial period clause will include a notice period specific to the trial period and, often shorter than the standard notice period. If no notice period is stated, reasonable notice is required.
For example, an employer could give two weeks’ notice on day 85 of a valid 90-day trial. Waiting until day 91 to give notice is too late to rely on it.
Your final pay must still include wages and holiday pay owed. A trial is paid employment.
What should I do if I have been sacked?
Keep your agreement, dismissal letter, messages, payslips and records of when you first worked and signed. Write down what your employer said and any concerns you raised before dismissal.
Get advice promptly. Most personal grievances must be raised with the employer within 90 days of the issue arising or coming to your attention, whichever is later. Sexual harassment grievances have a 12-month limit. These deadlines are separate from your trial period.
If you are dismissed on your 90 day trial and believe that your trial may not have been valid, or that your employer has used it incorrectly, get in touch with us today. Mathews Walker’s employment advocates can check your agreement, the dates and what happened, then explain your options. Contact us for a free consultation.
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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