90-day trial dismissal: when you can still raise an unfair dismissal personal grievance

90 day trial dismissals - when you can still bring a claim

A valid 90 day trial period can prevent a Personal Grievance (PG) for unjustified dismissal. But trial periods have strict requirements. If the clause or notice is defective, you may still have a claim. A 90-day trial period can be a legitimate tool, but it is technical and interpreted strictly. Small defects commonly invalidate the trial, which can reopen an unjustified dismissal claim.

This page is written for both employees and employers. If you've been dismissed "on a trial" (or you're considering dismissing someone), pay close attention to the formation of the agreement and the notice process - that is where most cases are won or lost.

90 day trial mistakes

Any defect can 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. These are the most common failure points we see in practice:

• No written employment agreement. (A trial period must be in the written agreement.)
• Agreement signed after work started - even "starting work" for a short period, training, induction, or doing tasks before signing can be fatal.
• 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.
• The clause does not say all of the required things (eg, it doesn't clearly state the employer can dismiss during the period, and the employee cannot bring a PG / legal proceedings about dismissal).
• Trial period does not comply with conditions set out in section 67A of the Act.
• Unclear start date - the trial period does not accurately particularise when the trial period begins. This can also become a difficulty where there's a training period or period of induction and the start date of the trial period is not clear.
• Unclear end date / duration - the trial period does not accurately particularise the duration of the trial or when the trial period would end. An example is "up to 90 days" (ambiguous, not an exact period).
• "Three months" - common drafting mistake. Three months can exceed 90 days, and that can invalidate the clause.
• Not a "new employee" - a trial period generally cannot be used if the employee has previously worked for the employer.
• Immigration/visa restrictions ignored - certain visa categories can restrict the use of trial periods (check before you rely on one).
• Trying to use "trial shifts" as unpaid labour - a trial period is not a free work arrangement. If a person is working as an employee, wages and minimum entitlements apply.
• Bad record-keeping - the employer cannot later prove the agreement was provided, explained, signed in time, and that the employee had a fair opportunity to seek advice.
• And the list goes on...

Why the courts take a strict approach

Trial periods remove one of the core protections in NZ employment law (the ability to bring a personal grievance for unjustified dismissal), so courts and the Authority tend to interpret these clauses strictly. In plain English: if an employer wants the benefit of the trial regime, they must follow the law and their own paperwork exactly.

90 day trial dismissal

Very often we find that the employer will get the notice process wrong when the employer writes and issues the termination letter. Trial period clauses are interpreted strictly - and that includes the notice wording and timing.

90 day trial period termination letter notice mistakes include:

• The termination letter is written to the effect that termination of employment is immediate (despite a notice requirement).
• 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 unless the contract clearly allows otherwise (and it is done correctly).
• Notice paid to the employee is deficient in its quantum, or the wrong notice is paid.
• Notice is not in the required form (eg, the agreement requires written notice but the employer tries to do it verbally or by a casual text).
• The letter does not clearly state it is a trial period notice and fails to reference the relevant clause / notice period.
• Notice is given late (outside the trial period), even if only slightly late.
• And the list goes on...

Minimum content we recommend in a trial period termination letter

• Clear statement that the employer is giving notice of termination under the trial period clause.
• Reference to the specific clause and the notice period being applied.
• State the date notice is given, the last day of employment, and whether the employee is to work the notice or will be paid in lieu (only if permitted).
• Confirm final pay items: wages to last day, holiday pay (and any other contractual entitlements).
• Keep it tight - adding unnecessary "reasons" can create disputes or other claim angles if the reasons are inaccurate or unsupported.

Employee rights during a 90 day trial

A trial period does not turn an employee into a second-class worker. Pay, leave, and health and safety obligations still apply. The main carve-out is the ability to bring a personal grievance / legal proceedings about dismissal if - and only if - the trial is valid and the employer acts within it.

What claims can still exist even if the trial is valid?

• Discrimination, harassment, and other prohibited conduct claims are not "deleted" by a trial period.
• Wages / holiday pay issues (including arrears and incorrect final pay).
• Disadvantage type claims (for example, unjustified action short of dismissal), depending on the facts.
• Whistleblowing / protected disclosure issues (highly fact-dependent).

Practical checklists

Trial period vs probation period (quick distinction)

A probationary period is different. Employers generally must still follow a fair process and have good reasons to dismiss during probation. A trial period (if valid) limits dismissal challenge rights - but only for dismissal, and only if the legal requirements are met.