What is a trial period?
A trial period is a part of an employment agreement between employee and employer. A trial period can be any length of time up to a maximum of 90 days. During this time, the employer is allowed to dismiss the employee without the employee being able to raise a personal grievance. There is also no requirement for providing written notice of the reasons for dismissal, but an employer acting in good faith should inform the employee why they have been dismissed.
A trial period has to be set out in writing (usually as a clause in the employment agreement), and has to be signed by both parties before the employee begins work for their employer. If the employer wishes to dismiss the employee they must give notice of dismissal to the employee before the end of the trial period (even if that dismissal does not actually happen until after the trial period ends). Otherwise the employee will be able to challenge the dismissal by bringing a personal grievance if they wish.
Employers can also choose not to include a trial period in employment agreements.
For more information, visit the Ministry of Business, Innovation and Employment's Labour Information website.
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?
If the notice of dismissal is given during the trial period (a trial period can lawfully be any period of time up to 90 days) then your employer can dismiss you without consulting with you beforehand. You would not be able to bring a personal grievance against the employer in relation to the dismissal. (It is important to remember that employees on a trial period can bring other personal grievance claims based on other grounds such as discrimination, harassment, or to recover unpaid wages for example.) It’s also important to note that aside from the ability to dismiss you ‘grievance free’ you should not be treated any differently from any other employee.
It is worth checking whether there is actually 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 Labour Information website .
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.
It is possible for the notice period for an employee on a trial period to be different from the notice period for employees not on a trial period, as long as it is specified in the employment agreement. For example, most employment agreements used by an employer may include a four weeks’ notice of dismissal clause in most of their employment agreements, but only two weeks’ notice for someone employed on a trial period. Generally, in this situation you would include the notice period in a sub-clause within the trial period clause of the employment agreement.
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, and new employees who don’t get a chance to sign their employment agreement until they have already started working for their employer.
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.
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 employee 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.
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 Labour Information website.