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90 Day Trial Period NZ

90 Day Trial 90 Day Trial Unfair Dismissal Unfair Dismissal

A 90 day trial period must be validly written and lawfully entered into. Notice must also be correctly given under a trial period. Any defect will allow an employee to pursue an unjustified dismissal claim.

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Trial period mistakes

Any defect will allow an employee to pursue an unjustified dismissal claim. Employers are still getting the 90 day trial period wrong when attempting to hire and fire new staff.

  • No written employment agreement.
  • The employee started work before being given an employment agreement to sign that contains a trial period clause.
  • Employment agreement does not contain a trial period clause.
  • Trial period does not comply with conditions set out in section 67A of the Act.
  • The trial period does not accurately particularise when the trial period begins. This can also become a difficulty where there‚Äôs a training period or period of induction and the start date of the trial period is not clear.
  • The trial period does not accurately particularise the duration of the trial or when the trial period would end. An example of this is "up to 90 days", this is at best ambiguous.
  • Where the trial period is for more than 90 days duration. For example, specifying a duration of three months is a common mistake because this exceeds 90 days.
  • The employer does not give notice correctly under the trial period clause.
  • and the list goes on...

90 day trial dismissal

Very often we find that the employer will get the notice period wrong when the employer writes and issues the termination letter. The Employment Court and the Court of Appeal have both confirmed on numerous occasions that trial period clauses are to be interpreted strictly. This includes the notice period.

90 day trial period termination letter notice mistakes include:

  • The termination letter is written to the effect that termination of employment is immediate.
  • The termination letter refers to making payment in lieu of notice, however the trial period clause does not permit the employer to make a payment in lieu of notice of termination. Put another way, the employee is entitled to work their notice period.
  • Notice paid to the employee is deficient in its quantum, or the wrong notice is paid.
  • and the list goes on...

Read our full article

We write employment law commentary for the Deals on Wheels magazine. Read our full article here: 90 day trial period law

90 Day Trial NZ Download File: 90 day trial dismissal law

Last Updated: July 26, 2021 0800 WIN KIWI