The difference between a probationary period and a statutory 90-day trial, and the fair process an employer must still follow before dismissing an employee on probation.
A probationary period does not remove an employee's ordinary dismissal rights. The employer should assess suitability fairly, identify performance concerns, provide a genuine opportunity to improve and follow a fair process before dismissal.
A probationary period is not the same thing as a 90-day trial period. Probation can be used to assess whether an employee is suitable for a role, but it does not remove the employee's ordinary right to challenge an unjustified dismissal.
Probationary period: can be for a reasonable agreed period and should be recorded in the employment agreement. If the employer dismisses during or at the end of probation, the ordinary justification and fair-process requirements still apply.
90-day trial: is a separate statutory regime. Where a valid trial applies, it can restrict the employee's ability to challenge the dismissal and dismissal-related disadvantage. See the 90-day trial guide.
The employee should know what standard is expected and receive meaningful feedback if the employer says they are not meeting it. Where improvement is reasonably possible, the employer should identify the concern, provide appropriate guidance or training, and give the employee a genuine opportunity to demonstrate suitability before deciding to dismiss.
The word "probation" is not a shortcut around fair dismissal. The employer should fairly assess the employee, explain why performance or suitability is considered inadequate, warn that employment may end, allow a response and a genuine opportunity to improve where appropriate, and follow any process promised in the employment agreement or policies.
If dismissal follows, the contractual notice requirement ordinarily still applies. The employee may be able to raise a Personal Grievance if the reason or process was unjustified.
The difference between a probationary period and a statutory 90-day trial, and the fair process an employer must still follow before dismissing an employee on probation.
![Sirikanya Pankhum v Super Vape Store Limited [2026] NZERA 149 - WhatsApp dismissal during probation, no process; $12,500 compensation, $7,873.92 lost wages, $311.28 holiday pay](/Images/site/EmploymentAdvocatesAucklandCard.jpg)
Sirikanya Pankhum was working under a six-month probation clause when Super Vape Store ended her employment by WhatsApp. A probationary arrangement did not remove the requirement for the employer to identify concerns, hear her response and use a fair dismissal process.
Retail assistant Gemma Pedersen was dismissed by WhatsApp/email during a six-month probation period for allegedly missing sales KPIs. She said she had not received the promised practical training and had never been put through a genuine performance process before termination.
North Beach relied on a 90-day trial clause to argue Noel Camacho could not bring an unjustified-dismissal grievance, but the same employment agreement also contained a probation clause that conflicted with the trial wording.
Lekeisha Ramsay was dismissed by National Storage just over three months into employment under a probationary arrangement. The ERA examined attendance and performance concerns, the adequacy of warnings and whether the employer had given her a fair opportunity to improve and respond before termination.
Mere Broughton was dismissed after 106 days at The Whanau Ora Community Clinic. Her agreement contained a probation clause, and the dispute centred on the employer's attempt to use that clause as a shortcut to termination rather than carrying out a substantively justified and fair process.