Noel Jr Camacho v North Beach Limited [2025] NZERA 824 - Trial period clause ineffective due to probation conflict
In Noel Jr Camacho v North Beach Limited [2025] NZERA 824, the ERA held that a 90-day trial period clause could not be relied on because the employment agreement also contained a probationary period clause that created ambiguity and conflicting notice and process obligations. The employee was not barred from bringing a PG for dismissal. Costs were reserved.
This page summarises and displays the Employment Relations Authority (ERA) preliminary determination Noel Jr Camacho v North Beach Limited [2025] NZERA 824. The question was narrow but important: could North Beach rely on a 90-day trial clause to block a personal grievance (PG) for dismissal? The ERA said no - because the same agreement also included a probationary period clause that created ambiguity and conflicting obligations.
Quick facts
- Citation: Noel Jr Camacho v North Beach Limited [2025] NZERA 824
- ERA registry: Auckland
- Member: Matthew Piper
- Investigation: On the papers (affidavit evidence)
- Determination date: 18 December 2025
- Applicant representative: Hayley Johnson (advocate)
- Respondent representative: Emma Monsellier (advocate)
- What this decides: Trial period validity / whether a PG for dismissal is barred (a preliminary issue)
What happened (timeline)
- 13 November 2024: North Beach progressed Mr Camacho's application and arranged interviews.
- 18 November 2024: North Beach emailed a proposed employment agreement; an automated portal email also referred to a 90-day trial period.
- 21 November 2024: Mr Camacho signed and returned the agreement.
- 25 November 2024: Employment commenced (Assistant Store Manager, LynnMall).
- 2 December 2024: North Beach terminated employment, relying on the trial period clause and giving one day's notice (paid in lieu).
The legal issue
The agreement contained both:
- A trial period clause (s 67A / s 67B) stating Mr Camacho could not bring a PG for dismissal if dismissed within the trial period; and
- A probationary period clause (s 67) stating the employer would provide guidance and warning, and that the probation does not limit legal rights and obligations (good faith and fairness still apply).
Why this matters in practice
- Trial periods remove the right to bring a dismissal PG - so they are interpreted strictly.
- Probation does not remove PG rights and still requires fairness and justification.
- If an agreement tries to do both at once, the drafting has to be consistent or the employer may not be able to rely on the trial clause.
What the ERA decided
The ERA found the probationary period clause was in effect (it was included in the signed agreement and there was no clear language excluding it). The presence of both the trial clause and probation clause created ambiguity because they imposed conflicting rights and obligations - including different notice periods and whether a fair process must be followed before ending employment.
Applying the strict approach to trial provisions (and the Employment Court's reasoning on conflicts between trial and probation clauses), the ERA held that the trial period clause was ineffective. Mr Camacho was not prevented from bringing a PG in respect of dismissal.
Outcome (preliminary issue)
- Trial period clause: ineffective due to ambiguity created by the probation clause.
- PG for dismissal: not barred - the dismissal can be challenged in the usual way.
- Costs: reserved.
Practical drafting takeaways
- Choose one tool: If you want a statutory trial period, do not also include a probation clause that implies a process and justification obligations during the same period unless you draft it to be fully consistent.
- Align notice periods: Differing notice periods between trial and probation clauses can be a red flag for ambiguity.
- Be clear in the agreement: Do not rely on portal emails or "system messages" to define legal terms - the signed agreement should be internally consistent.
- Assume strict interpretation: If there is any ambiguity, an employer may lose the ability to rely on the trial clause.
Read the full determination
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