George King v Off the Wall Construction Ltd [2026] NZERA 14 - 90-day trial invalid, unjustified dismissal

What happened

Mr King interviewed for a role on 16 August 2023 and was sent an employment agreement on 17 August 2023. He was then asked to do a day of work on 18 August 2023 and was paid $350 in cash. Mr King signed the employment agreement and started ongoing work on 22 August 2023.

On 15 November 2023, after a short meeting, his employment was terminated with the employer relying on a 90-day trial clause. Mr King raised a personal grievance for unjustified dismissal and sought lost wages, compensation for hurt and humiliation, and the cost of tools.

The 90-day trial issue

The Authority found that Mr King's employment began on 18 August 2023 when he agreed to perform work, did so under direction and supervision, and was paid for it. That meant he had already been employed by the time he signed the employment agreement on 22 August 2023, so the 90-day trial period could not validly apply.

Why the dismissal was unjustified

Once the Authority found the trial clause was invalid, the dismissal had to be assessed under the normal test of justification (Employment Relations Act 2000, section 103A). The Authority concluded the employer's concerns about the employment relationship were not put to Mr King before dismissal and he was not given a proper opportunity to respond. The dismissal process relied on an invalid contractual provision rather than a fair process.

Orders and remedies

• $13,650.00 gross as lost remuneration (13 weeks, based on the evidence and the section 128 cap)
• $15,000.00 compensation for hurt and humiliation (section 123(1)(c))
• Note on "contribution": The Authority reduced the compensation from the $25,000 sought, noting aspects of the employee's conduct and the wider circumstances. The Orders section records this as "taking into account the reduction for contribution".
• Further lost wages were declined: the Authority was not persuaded there were significant mitigation efforts to justify a longer period.
• Tools claim declined: the Authority was not satisfied the claimed tools and replacement costs were proven.
• Costs reserved: the parties were encouraged to resolve costs, with a timetable for memoranda if they could not agree.

Practical takeaway

• If you want a 90-day trial, the agreement (with the trial clause) must be signed before the employee does any work for you.
• A paid "trial day" can be enough to mean the person has already been employed, making the later 90-day trial clause invalid.
• Cash payment does not automatically mean "contractor". The real question is the nature of the work relationship.
• Even where an employer believes there are genuine relationship or performance concerns, those concerns still need to be raised, tested, and fairly responded to before dismissal (unless a valid statutory trial period is in place and properly used).

Read the full determination

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Open [2026] NZERA 14 (PDF)