How to Dismiss During NZ 90-Day Trial: Procedural Notes

The 90-day trial provision is one of the most defended pieces of New Zealand employment law. Reintroduced by the Employment Relations Amendment Act 2022 for all employers (previously SMEs only), it allows dismissal during the trial period without an unjustified-dismissal personal grievance, provided strict statutory and contractual conditions are met. Get the conditions wrong and the dismissal is fully justiciable under Employment Relations Act 2000 (ERA), s.103, often with awards exceeding NZ$25,000.

This how-to walks the procedure, the traps, and the documentation a legally defensible trial dismissal requires.

The legal framework

Under ERA s.67A and s.67B (re-extended by Employment Relations Amendment Act 2022, in force 23 December 2023 for all employers):

• An employer may include a trial period of up to 90 calendar days in a written employment agreement.
• The trial provision must be agreed in writing before the employee starts work.
• The employee must be a new employee — never previously employed by the same employer.
• Dismissal during the trial period cannot give rise to a personal grievance for unjustified dismissal.

The trial provision survives if the procedure is followed exactly. Any deviation collapses the protection and exposes the employer to a full s.103 grievance.

Step 1 — Draft the trial clause before the start date

Under s.67A(1)(b), the trial period is enforceable only if it is in a written employment agreement signed before the employee begins work. The clause must:

• State the duration (typically 90 days, but can be shorter).
• State the date the trial period commences (start date).
• State the dismissal mechanism — that the employer may dismiss during the trial without personal-grievance entitlement.
• State the notice period during the trial.

A template clause:

“For the first 90 calendar days of employment, this is a trial period under sections 67A and 67B of the Employment Relations Act 2000. During the trial period, either party may end the employment by giving [X] days’ written notice. If the employer ends the employment during the trial period, the employee will not be able to bring a personal grievance for unjustified dismissal.”

Step 2 — Sign the agreement before day one

The single most common failure: the employee starts work and signs the agreement on day two or three. The trial clause is void.

Process:

1. Send the agreement before the offer is accepted.
2. Allow the employee a reasonable opportunity to seek advice (s.63A).
3. Sign and date the agreement before the start date.
4. Retain the signed original (s.130 employer record-keeping).

If the agreement is signed on day one before any work is done, that may suffice — but the safer path is to sign before the start date so there is no dispute.

Step 3 — Conduct meaningful induction and feedback

The trial period is not a formality. Under s.67B(2), the employer is still bound by the duty of good faith in s.4. The employer should:

• Provide a clear job description and performance expectations.
• Conduct regular check-ins (week 2, week 6, week 10).
• Document any performance concerns in writing.
• Give the employee a chance to improve, even though it is not legally required.

While good-faith breach during a trial period does not give rise to a personal grievance for unjustified dismissal, it can give rise to other claims (e.g., breach of contract, discrimination under s.103(1)(c)).

Step 4 — Decide to dismiss within the 90 days

The dismissal must take effect within the 90-day window. If the 90 days expire and the employee continues working, the trial period has ended and full protection under s.103 applies.

Counting: 90 calendar days, not working days. Day one is the first day of employment. Day 90 is the last permissible last day of employment.

Step 5 — Give written notice

Under s.67B(1), dismissal during the trial requires notice in accordance with the agreement. Common notice periods:

• 1 week — typical for short-tenure professionals.
• 1 day — used in some hospitality and casual roles (must be stated in the agreement).
• Notice plus pay in lieu — permitted if the agreement allows.

The notice must be in writing and reach the employee within the 90-day window. The actual end date can be after day 90 if the notice was given within the window.

Step 6 — Pay final wages and entitlements

On termination, the employee is entitled to:

• All wages earned to the termination date.
• Holiday pay under the Holidays Act 2003 (8% of gross earnings if not yet entitled to annual leave).
• Public holiday pay if applicable.
• Any contractual entitlements (commissions, bonuses earned).

Final pay is due on the next normal pay day or, if requested, on the termination date.

What the employee CAN still claim

Even within a valid 90-day trial, the employee may bring claims for:

• Discrimination under s.103(1)(c) — based on race, sex, religion, age, disability, etc., regulated by the Human Rights Act 1993.
• Sexual or racial harassment under s.103(1)(d) and (e).
• Duress under s.103(1)(f).
• Disadvantage under s.103(1)(b) — actions short of dismissal that caused detriment.
• Breach of contract — separate from personal grievance.

In practice, this means dismissal must not be motivated by any prohibited ground. Document the performance-based reason clearly.

Common mistakes that collapse the trial protection

1. Agreement signed after start date. The trial clause is void. Personal grievance is available.

2. Re-employed employee. If the employee previously worked for the same employer (even briefly), the trial cannot apply. Check carefully — including holiday-cover and casual roles.

3. Notice given after day 90. Even one day late: trial protection lost.

4. Notice not in writing. Verbal “you’re done” is unenforceable.

5. Discrimination motive. Even if the trial procedure is perfect, a discriminatory dismissal is actionable under s.103(1)(c).

6. Contracted in collective agreement. Some collective agreements exclude the 90-day trial. Check before relying on it.

Dialogue: an HR Manager runs a 90-day case

🐣 Chick: “Employee at week 6, performance below expectations. Can we end?”

🐮 Cow: “Trial clause is in the signed agreement, dated before start. Yes.”

🦉 Owl: “Notice must be in writing per the agreement. If the agreement says one week, give one week’s notice in writing today.”

🐣 Chick: “Reason?”

🐮 Cow: “State the reason factually — performance below the standard required. Avoid discrimination triggers. Avoid emotional language.”

🦉 Owl: “And document the prior feedback. Even though not legally required, it makes any later good-faith claim much harder.”

🐣 Chick: “What if the employee asks for a meeting?”

🦉 Owl: “You can grant it, but you do not have to follow the unjustified-dismissal procedure. The 90-day trial removes that requirement.”

Closing notes

The 90-day trial gives genuine flexibility, but only when the procedure is precisely followed. The protection collapses on the smallest paperwork error. Best practice: signed agreement before start date, induction with documented check-ins, written dismissal notice within the window, clear performance-based reason, and final pay on time.

A Gyoseishoshi (行政書士) drafts bilingual employment agreements with valid trial clauses and dismissal notice templates. A New Zealand-qualified barrister or solicitor should review any case where dismissal involves potential discrimination, harassment, or contested timing.

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Disclaimer

Legal information, not legal advice. MmowW Scrib🐮 is operated by a licensed Gyoseishoshi (行政書士) office in Japan. We are not New Zealand lawyers. For binding advice on dismissal procedure, contested trial periods, or personal grievance defence, consult a New Zealand-qualified barrister or solicitor or an employment lawyer.

Sources

• Employment Relations Act 2000, s.67A — https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM6803153.html
• Employment Relations Act 2000, s.103 (personal grievance) — https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM60322.html
• Employment Relations Amendment Act 2022 — https://www.legislation.govt.nz/act/public/2022/0040/latest/whole.html
• Employment New Zealand, Trial periods — https://www.employment.govt.nz/starting-employment/trial-and-probationary-periods/
• Holidays Act 2003 — https://www.legislation.govt.nz/act/public/2003/0129/latest/DLM236387.html