![WILKINS v DD GROUP HOLDINGS LIMITED [2025] NZERA 536 - 90-day trial invalid because agreement was signed after work began](/Images/site/EmploymentAdvocatesAucklandCard.jpg)
DD Group Holdings relied on a 90-day trial clause to dismiss Kelly Wilkins, but she had already begun paid training before the employment agreement containing the clause was signed. Her own conduct was also relevant to remedies.
NZ 90 day trial periods explained for employees. When a valid trial can restrict unjustified dismissal and dismissal-related disadvantage claims, and the common mistakes that can make a trial invalid.
A valid 90 day trial period can restrict a Personal Grievance (PG) for unjustified dismissal and unjustified disadvantage that relates to the dismissal. However, the legal requirements are strict. If the statutory trial requirements are not met, the employee may still be able to challenge the dismissal.
Trial periods are governed by section 67A of the Employment Relations Act 2000. If the trial is valid, the Act restricts an unjustified dismissal grievance and an unjustified disadvantage grievance to the extent the disadvantage relates to the dismissal. Other employment rights and other PG grounds can remain available depending on the facts.
These are common failure points we see in practice:
Even with a correctly drafted clause, employers often get the notice process wrong. Notice must be issued within the trial period and must comply with the agreement's requirements.
Notice must be given during the trial period. The last day of employment can fall after the trial ends, as long as notice was delivered in time.
A valid trial period primarily restricts claims about the dismissal. Since 21 February 2026, the Act expressly includes an unjustified disadvantage grievance where the alleged disadvantage relates to the dismissal. Other personal grievance grounds and employment claims can still remain, depending on the facts, including:
A probationary period is different. Employers generally must still have good reasons and follow a fair process to dismiss during probation. A valid trial period can bar an unjustified dismissal grievance and an unjustified disadvantage grievance to the extent the disadvantage relates to the dismissal. Other grievance grounds remain available subject to their own requirements.
Put together the signed agreement, offer correspondence, evidence of when work actually started, and the termination notice. Those documents usually determine whether the employer can rely on the trial provision.
Check My CaseThe fastest way is to submit the case form with a short timeline and key documents. We will assess whether the trial was valid and what your best next step is.
Check My CaseEmployers often describe a dismissal as a "90-day trial dismissal" as though that ends the analysis. It does not. The employment agreement, when it was signed, whether the employee was genuinely new, the wording of the clause and the timing and form of notice all need to be checked against what actually happened.
If the statutory trial requirements were not satisfied, the employee may still be able to pursue an unjustified dismissal Personal Grievance. Other claims can also remain available even where the trial itself is valid.
DD Group Holdings relied on a 90-day trial clause to dismiss Kelly Wilkins, but she had already begun paid training before the employment agreement containing the clause was signed. Her own conduct was also relevant to remedies.
Mr Lazaro said Waimea Contract Carriers dismissed him at a 4 December meeting; the employer said he was merely suspended on full pay while training and other options were considered, and that employment ended later after he refused to return.
Southshore Marine attempted to rely on a 90-day trial when dismissing Mr Gillard after concerns about his work. The timing of when employment actually commenced and the complete absence of a fair performance, conduct or capacity process were central issues.
Ms Brennan's employment with Stella 2020 ended on 30 July 2024 without a fair disciplinary or dismissal process. The employer did not participate effectively in the ERA investigation, which proceeded on the evidence available to the Authority.
MOVE Freight dismissed Mr Putaanga for medical incapacity after a workplace accident and a lengthy period assessing his prospects of returning to full-time work. He also alleged the employer had failed to provide a safe workplace and that this caused unjustified disadvantage.
R1i Technology dismissed Mr Bali during a Webex meeting and then confirmed the decision in writing. The employer did not participate in the ERA proceeding and the evidence showed no meaningful process satisfying the minimum statutory tests of procedural fairness.
Master Z Food said Ms Li resigned during an April 2023 meeting; Li said she was told the decision had already been made to dismiss her and she could merely work out the week. Contemporary WeChat messages were central to resolving who ended the employment.
Mr Paetz resigned from Solly's Freight after disputes about excessive hours and the employer's failure to conduct a required pay review. He argued those ongoing breaches caused his resignation and also independently disadvantaged him while employed.