Trial periods 

What is a trial period?

A trial period is a period of up to 90 days when an employer is allowed to dismiss the employee without the employee being able to raise a personal grievance for unjustified dismissal.

During this period the employer is not required to give written notice with the reasons for the dismissal. However they should act in good faith and inform the employee why they have been dismissed. A trial period can only be used for new employees.

If an employer wants to hire someone for a trial period this has to be set out in writing (usually as a clause in the employment agreement), and must be signed by both parties before the employee begins working for the employer. If the employer decides to dismiss the employee they must give notice of dismissal to the employee before the end of the trial period (even if the dismissal does not actually happen until after the trial period ends). Otherwise the employee is entitled to challenge the dismissal by bringing a personal grievance if they wish.

An employee working on a trial period is still entitled to the usual minimum employment rights e.g. to be paid for work they have done, sick leave, paid public holidays. When the trial period finishes then unless the employee has been dismissed they become a permanent member of staff. A trial period can not be extended.

Employers can also choose not to include a trial period in an employment agreement. 

For more information, visit the Ministry of Business, Innovation and Employment's Employment NZ website.

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If I'm employed under a 90 day trial period, can my employer fire me within 90 days even if I haven’t done anything wrong?

As long as the employer gives you notice of dismissal within the trial period (a trial period can lawfully be any period of time up to 90 days) they can dismiss you without consulting with you beforehand and for any reason. You would not be able to bring a personal grievance against the employer in relation to the dismissal (but you can bring a personal grievance claim based on other grounds such as discrimination, harassment, or to recover unpaid wages for example.)

Aside from the employer's ability to dismiss you ‘grievance free’ you should not be treated any differently from any other employee.

It is worth checking your employment agreement to confirm whether there is in fact a trial period clause in your employment agreement. Unless it’s in writing and signed by both employer and employee before the employee starts, the trial period isn’t valid.

For more information, visit the Ministry of Business, Innovation and Employment's Employment NZ website.

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How much notice must I give before dismissing someone I have employed under a trial period?

There should be a clause in your employment agreement which states how much notice must be given if the employee will be dismissed. In general this means that if the employer wishes the employee to leave right away (rather than working through the notice period), then they must pay out the employee for the notice period.

The notice period for an employee on a trial period can be different from the notice period for employees not on a trial period, as long as the notice period is specified in the employment agreement.

For example, most of your employees' employment agreements might include a four weeks’ notice, but for your employees on trial periods the notice period stated in their agreements might be just two weeks. Generally, in this situation you would include the notice period in a sub-clause within the trial period clause of the employment agreement.

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I have worked casually for my employer in the past, now they want to employ me fulltime on a trial period. Is this allowed?

The law says that a trial period can’t apply to someone who has previously been employed by the employer. This includes people have worked for the employer before but in a different role, as well as new employees who don’t get a chance to sign their employment agreement until they have already started working for their employer.

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How much notice must I give if I want to leave my job (I’m part way through a trial period)?

The amount of notice you would have to give would depend on what it says in your employment agreement. If your agreement doesn’t specify a particular number of days or weeks, you still have to give “reasonable” notice (otherwise your employer is entitled to withhold your final pay or deduct penalties from it).

This also applies if your employment agreement doesn’t include a trial period. More information is on our Choosing to leave page.

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What’s the difference between a trial period and a probation period?

A probation period is a period at the beginning of someone’s employment, where the employee can show what they can do and the employer can assess them for suitability for permanent employment. The probation period, like the trial period, must be recorded in the employment agreement and must be agreed by both parties. A probation period should only be long enough for the employee to demonstrate their suitability for the job.

Where it differs from trial periods is that the probationary employee can’t be dismissed without a good reason and the employer must still follow correct procedure for dismissal. A probationary employee can still raise a personal grievance for unfair dismissal. 

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I have been on a two-week probation period and I didn’t get paid. Can they do that?

No, that’s not lawful unless you agreed to work as a volunteer. You should be paid for all the hours you worked. The only difference between a probationary employee and a permanent employee is that a probationary employee hasn’t been confirmed in the job yet. A probationary employee still has to be paid and receive all the benefits that a permanent employee would get, such as minimum pay, leave, and health and safety.  For more information, visit the Ministry of Business, Innovation and Employment’s Employment NZ website

If you did not agree to work for free and your employer refuses to pay you, contact MBIE’s Workplace Contact Centre on 0800 20 90 20 for advice. If appropriate, they can refer your case to the Labour Inspectorate to take action.

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When I applied for a job at a café I was asked to work unpaid for an hour as part of the interview process. Is this legal?

It’s common (and legal) for some types of employers (mostly in the hospitality industry) to ask a job applicant to do a short “trial run” to help the employer decide whether to hire them, as part of the job interview process.

If, as part of your job application, you are asked to do some work to show your suitability for the job, it’s very important for both parties to be clear as to what to expect.

For example it should be clear:

  • that it is a work test, the purpose of which is to allow the employer to assess your ability to do the job (and not an offer of employment)
  • what exactly the work test consists of e.g. cook something from the café menu for the employer, if you’ve applied for a chef’s position.

It’s not illegal for an employer to ask a prospective employee to perform a short, unpaid work test to help them decide whether you are the right person for the job.  However, if you have reason to believe that you have been effectively working as an employee then you could make a claim for all of the minimum employment rights.

Some of the factors that might determine that you are effectively an employee include:

  • The kind of work you did as part of your work test was of commercial benefit to the employer e.g. instead of asking you to make the employer a cappuccino to test your barista skills, they asked you to work a complete shift alongside the staff
  • You were paid for your time or expected to be paid 
  • Something the employer told you led you to believe they had given you a job offer

If you want to be fairly confident that an employer isn’t simply trying to get free labour from job applicants, it’s worth asking around to get an idea as to whether people who have performed unpaid work tests at that particular business have tended to get employed as a result.

If you are not sure what your rights are in a situation like this, contact the Ministry of Business, Innovation and Employment’s workplace contact centre on 0800 20 90 20. You can also contact your trade union eg UniteE Tū, FIRST Union or Union Network of Migrants.

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The business I work for has been sold, but I am staying on. Will I have to work a trial period for the new business owner?

It depends.

If you would be considered a “vulnerable worker” you will have the right to transfer to the new employer on the same terms and conditions of employment that you have under the old employer. This means that you should not have to work a trial period.

If you aren’t a “vulnerable worker” then you don’t have the same protections. The new business owner isn’t obliged to take you on.

If the new owner has an agreement with the old employer that your current work conditions will continue, then your work conditions should not change. If there is no such agreement, the new owner is entitled to give you a new employment agreement. The new employment agreement can have different conditions, including a trial period.

Every employment agreement must include an employee protection clause which states what will happen if the business you work for is sold.

More information about what happens to employees when the business they work for is sold, is on the Employment NZ website.