90-DAY TRIAL PERIODS

With effect from Saturday 23 December 2023, all employers in New Zealand, no matter their size, can use 90-day trial periods.

Prior to Saturday 23 December 2023, this has only applied to employers with 19 or fewer employees.

If employers are hiring people on certain work visas, they will also need to consider immigration requirements relating to the use of trial periods.

A valid trial period

must be agreed to in the employment agreement before the employee starts work, or the trial period is invalid

 must have a valid notice period in the employment contract

can be used in any industry and for any job

must be agreed by the employer and employee in good faith – an employee can’t be forced into being employed on a trial period

means that the employee can’t bring a personal grievance for unjustified dismissal or other legal proceeding about their dismissal (as long as the employer has given the right amount of notice to the employee)

must be in the employment agreement and must state that:

from the very start of their employment, the employee will be on a trial for a set period which isn’t more than 90 days (but can be less). The exact time period must be stated, for example, it could be 30 days, or 90 days, or another stated time period; and

during the trial, the employer can dismiss the employee, and

the employee can’t bring a personal grievance or other legal proceedings about their dismissal.

Rights and responsibilities

Employees on valid trial periods:

have all minimum employment rights and responsibilities (for example, in relation to health and safety, minimum pay, annual holidays, public holidays, sick and bereavement leave and equal pay), except bringing a personal grievance for unjustified dismissal

must be treated the same as other employees who aren’t on a trial period.

Even if an employee is on a trial period, they can still bring a personal grievance on grounds other than about their dismissal.

Giving notice of dismissal

If the trial period isn’t going well and the employer decides to dismiss the employee, they must give notice to the employee that they will be dismissed.
The employer doesn’t have to give reasons for a dismissal during a trial period or give the employee a chance to comment before the dismissal. But it is good practice to tell the employee why they are being dismissed.

Sources of information:

https://www.employment.govt.nz/about/news-and-updates/90-day-trial-periods-extended-to-include-all-employers/

https://www.employment.govt.nz/starting-employment/trial-and-probationary-periods/trial-periods/

If you have any questions or need further information, please don't hesitate to contact Olga at olga@topflight.co.nz