90 Day Trial Period – FAQ

The 90 day trial period is a clause that an employer with 19 or fewer employees may include in your employment agreement. They can hire a new employee and give them up to 90 days as a trial period.

If used correctly and for any reason, the employment relationship does not work out within the first 90 days the employer may end the employment relationship without the risk of the employee raising a personal grievance.

However, employees can still raise a personal grievance for other reasons, such as discrimination, harassment, or an employers’ illegal behavior.

There should be a clause included in your employment agreement which states how much notice you will be given if you are to be dismissed during your trial.

This generally means that if the employer wants you to leave straight away (rather than working through your notice period), then they must pay you for the notice period.

The notice period while on your trial period can be different from the notice period after your trial has ended. If the notice period is not specified for the trial, then your employer should adhere to the standard notice period in the employment contract. 

If you are confused about your notice period, or have been dismissed on the spot without any notice, you can contact us to find out if you have a case on the grounds of an unfair dismissal.

If the 90 day trial period is not used incorrectly, despite the 90 day trial clause being included in the employment agreement, employees can still raise a personal grievance.

The 90 day trial can be less than but not more than 90 days, and the number of trial days must be specified in the employment agreement.

There are times when an employer may dismiss someone and claim that they can use the 90 day trial period, when in fact they actually can’t. For example:

  • Before you start work, you have not been notified in writing that the employment agreement contains a 90 day trial clause. Or you signed the employment agreement only after starting work.

  • You are not a new employee, as you have worked for the same employer before.

  • Your employer has more than 20 employees.

  • If you were given no time to seek independent legal advice before signing the contract

  • The correct 90 day trial period wording is not used in your employment agreement

  • Your employer dismissed you on the spot and immediately ended your employment without giving notice

There can often be technical errors made by the employer, if you have been dismissed during your 90 day trial period and you want to know if it is legal or fair, contact us. We can help you to check and understand your rights.

Every employment agreement requires that the parties give each other notice to end the relationship.

The notice you give should be the same as the notice that your employer would have to give you according to the trial period clause in your contract. 

As an employee, you should also act in good faith. If you are unhappy in your new job, we would encourage you to have a conversation with your employer. 

If you leave without giving the notice period that is set out in your employment agreement the employer may deduct wages in lieu of notice.

In the event that the employer suffers a financial loss as a result of you failing to give notice. The employer may take action in the Employment Relations Authority to recover those losses and to seek penalty. 

If you find yourself in the position of wanting to leave and are unable or unwilling to give notice you should seek legal advice from an Employment Advocate or lawyer. 

Feel free to contact us, we can arrange an employment advocate to discuss your situation with you.