Employment Relations Act 2000 — Section 67A
90-day trial periods in New Zealand — employer guide
Trial periods allow employers to dismiss a new employee within the trial period without the employee being able to bring a personal grievance for unjustified dismissal — if done correctly.
📋 Employment Relations Act 2000, Section 67A — all employers can use trial periods
Who can use a trial period?
All employers — but only for new employees
Any employer can use a 90-day trial period. The employee must be a new employee — someone who has not previously been employed by that employer. A returning employee, or a contractor moving to employment, cannot be put on a trial period if they have any prior employment history with you.
Requirements for a valid trial period
Must be in writing — before work starts
For a trial period to be valid, it must:
- Be included in a written employment agreement
- Be agreed to and signed before the employee begins work — even one day of work before signing is fatal
- Clearly state it is a trial period of up to 90 days
- State that the employee may be dismissed during the trial and cannot bring a personal grievance for unjustified dismissal
The trial period cannot be added after the fact or retroactively applied.
Notice during a trial period
Notice must be given within the trial period
The notice of dismissal must be given (not expire) within the 90-day trial period. If the notice period extends beyond 90 days, that's fine — but the notice itself must be served before day 90 ends. For example: if the trial period ends on day 90 and you have a 2-week notice requirement, you must give notice by day 76 at the latest.
What the trial period protects
Only protects against unjustified dismissal
A valid trial period only prevents the employee from bringing a personal grievance for unjustified dismissal. The employee can still bring grievances for:
- Unjustified disadvantage (discrimination, harassment)
- Breach of good faith
- Unlawful action
- Minimum entitlement breaches (pay, leave)
Common mistakes that invalidate trial periods
- Employee started work before signing the agreement
- Trial period clause not clearly worded
- Agreement signed on day one but after any work was done
- Employee was previously employed by the same employer
- Notice given after the trial period expired
- Employer failed to act in good faith throughout (e.g. promised feedback and didn't give it)
Source: Employment Relations Act 2000, Section 67A. Employment NZ guidance at
employment.govt.nz. This is general information, not legal advice — get specialist employment law advice for your situation.
Frequently asked questions
Can we extend the trial period beyond 90 days?
No. Trial periods are capped at 90 days by the Act. You can have a longer probationary period, but a probationary period does not carry the same protection — the employee retains full personal grievance rights.
Do we have to give a reason for dismissal during a trial period?
No. You are not required to give reasons for dismissal during a valid trial period. However, good faith obligations still apply — you should still treat the employee with basic decency and act honestly.
Can a casual employee be on a trial period?
Yes, if they are genuinely new to your employment. However, courts look carefully at whether casual employees who have worked for you previously qualify — even a single shift can disqualify them.
What if we give notice verbally during the trial period?
The Employment Court has found that notice can be given verbally. However, for certainty and evidence, always give notice in writing. Document the date and time of the notice.