During a Probationary Period of employment an employee is entitled to fair treatment during a probationary period and has personal grievance rights.
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.
During a Probationary Period of employment an employee is entitled to fair treatment during a probationary period and has personal grievance rights.
![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)
A retail assistant was dismissed by WhatsApp during a probation period after the employer relied on KPI metrics from CCTV and 'performance reports' but never raised concerns in writing or held any disciplinary meeting. The ERA held the employer ignored its own staged warning policy and the s...
A retail assistant was dismissed during a probation period after the employer said CCTV and KPI reports showed targets were not met. The ERA found the employer had not provided adequate POS and legal process training, yet relied on KPI results, and then terminated employment out of the blue by...
Preliminary determination on whether a 90-day trial clause barred an unjustified dismissal personal grievance. The employment agreement contained both a trial period clause (1 day notice, no PG) and a probation clause (1 week notice, fairness obligations). The ERA held the clauses created...
In Lekeisha Ramsay v National Storage Ltd [2025] NZERA 269, the ERA found a probationary period dismissal was unjustified where the employer relied on inaccurate absence data and did not fairly assess suitability through training, guidance, and genuine consideration of the employee's feedback. The ERA ordered $9,000 compensation (after a 10% contribution reduction) plus $14,040.40 gross lost wages and holiday pay, with KiwiSaver to be calculated. Good faith penalty claims under s 134 and aiding and abetting claims were dismissed.
In Mere Broughton v The Whanau Ora Community Clinic Ltd [2023] NZERA 52, the ERA found an unjustified dismissal after the employer wrongly relied on a probation / "90 day" misunderstanding after the probation period had already expired, and failed to pay notice and holiday pay. Remedies included $20,000 compensation and reimbursement of lost wages.