90-day trial periods in New Zealand, the rules, your rights and when a trial is invalid

Last updated 14 September 2026. This is general information, not legal advice.

The 90-day trial period is one of the most argued-over pieces of New Zealand employment law. It was introduced for small businesses in 2009, extended to all employers in 2011, cut back to businesses with fewer than 20 staff from May 2019, and restored to every employer from 23 December 2023. Along the way the courts have been asked again and again whether a particular trial was valid, and the answer has very often been no. The Employers and Manufacturers Association wrote in January 2025 that Ministry of Business, Innovation and Employment figures showed 75 percent of trial provisions challenged in the Employment Relations Authority between 2015 and 2023 were found to be invalid, largely because employers had not followed the procedural requirements.

This guide explains how a trial period works, exactly what makes one valid, what rights you keep during it, how it must be ended, what changed in February 2026, and what to do if you have been dismissed on one. It is written for employees first, but the same rules decide whether an employer is protected, so there is a section for employers too. If your dismissal was not on a trial period, or the trial turns out to be invalid, our guide to unfair dismissal and personal grievances covers the wider process.

What a 90-day trial period is

The rules are in sections 67A and 67B of the Employment Relations Act 2000. Section 67A(1) says an employment agreement containing a trial provision “may be entered into by an employer and an employee who has not previously been employed by that employer”. Section 67A(2) then defines a trial provision as a written provision in the agreement that says, or is to the effect, that for a specified period not exceeding 90 days, starting at the beginning of the employee’s employment, the employee is to serve a trial period, that during that period the employer may dismiss the employee, and that if the employer does so the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.

Section 67B does the work. If the employer terminates the agreement by giving notice before the end of the trial period, the employee cannot bring a personal grievance or legal proceedings in respect of the dismissal. That is the whole effect. The trial does not create a probationary status, it does not change your pay or leave, and it does not mean the employer can treat you differently in any other respect. Section 67B(4) says an employee on a trial provision is “in all other respects (including access to mediation services), to be treated no differently” from any other employee.

The 90 days are calendar days, not working days, and the period runs from the beginning of employment. The provision can be shorter than 90 days, but it cannot be longer, and it cannot start part way through a job.

Who can be put on a trial period

Since the Employment Relations (Trial Periods) Amendment Act 2023 came into force on 23 December 2023, any employer can use a trial period. Before that date only employers with fewer than 20 employees could. The 2023 Act removed the small-to-medium-sized employer limit from sections 67A and 67B and left everything else unchanged.

The one condition on who can be trialled is in section 67A(1). The employee must be someone “who has not previously been employed by that employer”. That is read strictly. It rules out anyone who has worked for the employer before in any capacity, including as a casual, in a different role, or on an earlier fixed term. It also rules out anyone who has already started work before the agreement is signed, because at that point they have been employed, even if only for a day. The Employment Court said in 2018 that what the phrase is getting at is whether the employer has already had “an opportunity to assess the employee’s suitability for the work”, and the Authority applied that reasoning in January 2026 to a single paid day of work, covered below.

Two further limits apply. Immigration New Zealand does not allow trial periods for migrants employed on an Accredited Employer Work Visa. Since 29 October 2023, employment agreements provided with job check applications must not include a trial period, and an accredited employer that uses one risks losing its accreditation. And where a collective agreement covers the work, an individual trial period cannot be inconsistent with it. If the collective says no trial periods, there can be none.

What makes a trial period valid

Every one of the following has to be true. If one is missing the trial provision does not protect the employer, and the dismissal is judged like any other.

• It is in writing, in the employment agreement. A verbal agreement to a trial, or a mention in an offer letter that never made it into the signed agreement, is not enough.
• The agreement was signed before any work started. This is where most invalid trials fail. If you started on Tuesday and signed on Wednesday, you were already an employee when you signed and the trial cannot apply. The Employment Court decided this point in 2010 in the first trial period case to reach it, and it has held ever since. Induction, training, shadowing and paid trial shifts all count as starting work.
• You had never worked for that employer before. In any role, on any basis.
• The period is specified and is 90 days or less, starting from the beginning of employment. A clause that merely says a trial period may apply, with no stated length, is not a specified period.
• The clause says what it does. It must state, or be to the effect, that the employer may dismiss you during the period and that if it does you cannot bring a personal grievance or other proceedings about the dismissal.
• You had a reasonable opportunity to seek independent advice. Section 63A of the Act applies whenever a trial period is proposed. The employer must give you a copy of the intended agreement, tell you that you are entitled to seek independent advice about it, give you a reasonable opportunity to get that advice, and consider and respond to any issues you raise. An agreement handed over at 8am on day one and signed at 8.05am does not meet that.

Employment New Zealand, the Government’s employment agency, lists the same failures as the situations where a dismissed employee can still bring a personal grievance despite a trial clause. They are that the employer did not give the notice in the agreement, that the employee started working before the agreement was signed, that the employee was not given a reasonable opportunity to get independent advice, or that the agreement does not mention there is a trial period.

How a trial period is ended

If the trial goes well nobody needs to do anything. You simply carry on as a permanent employee. If the employer wants to end your employment under the trial, section 67B(1) requires it to do so “by giving the employee notice of the termination before the end of the trial period”. The notice must be given inside the 90 days. Your last day can fall after the 90 days end, as long as the notice was given before they did. A dismissal communicated on day 91 is not a trial period dismissal at all.

The notice period is whatever your agreement says. If the agreement is silent, Employment New Zealand’s guidance is that reasonable notice must be given. The same guidance says that once notice has been given the employer can either have you work until the end of the notice period or put you on paid leave in lieu of notice, which keeps you employed and paid until the notice runs out. Whether an employer can instead end the employment on the spot with a lump sum in place of notice is less settled than it should be. In Smith v Stokes Valley Pharmacy (2009) Ltd in 2010, Chief Judge Colgan observed that the statute “does not provide an alternative in the form of payment of a sum of money instead of notice”, and the Authority later relied on that to find a trial dismissal by payment in lieu invalid. In 2017 a different Authority member accepted payment in lieu made under an express term of the agreement. Employment lawyers Hesketh Henry described the result as two directly conflicting Authority determinations. The cautious reading for employers is to give actual notice. The useful reading for employees is that if you were sent home the same day with a payment instead of notice, the validity of the dismissal is worth checking.

One thing the employer does not have to do is give you written reasons afterwards. Section 67B(5)(b) removes the usual obligation under section 120 to provide a written statement of reasons on request where the dismissal was a trial period dismissal. Section 67B(5)(a) also removes the specific good faith duty to give you access to information and an opportunity to comment before the decision. Everything else in the good faith duty stays. In the Stokes Valley case the Chief Judge said the remaining duties to be “responsive and communicative” tend to favour a requirement on employers to explain the dismissal at the time notice is given, even though a formal written statement cannot later be demanded. An employer who refuses to say anything at all is on thin ice.

What you cannot claim, and what you still can

A valid trial period dismissal shuts one door. As section 67B(2) now reads, you may not bring a personal grievance or legal proceedings “in respect of the dismissal”, which expressly includes an unjustified dismissal grievance and an unjustified disadvantage grievance “if the ground relates to the dismissal”.

Section 67B(3) is just as clear about what stays open. Neither the section nor the trial provision prevents you bringing a personal grievance or legal proceedings on the ground of unjustified disadvantage “if the ground does not relate to the dismissal”, or on any of the other grievance grounds in section 103(1)(c) to (k). Those include discrimination, sexual harassment, racial harassment, adverse treatment because you are affected by family violence, duress over union membership, and retaliation for a protected disclosure. Your minimum entitlements are untouched too. You must be paid at least the minimum wage, you accrue leave, you are entitled to your final pay including holiday pay, and if you are not paid correctly you can recover it. Our guide to unpaid wages and final pay covers how. You also keep full access to free mediation through Employment New Zealand, which section 67B(4) spells out.

So a dismissal during a trial that was really about you raising a health and safety concern, or that followed a complaint of harassment, is not beyond challenge. It is the ordinary unjustified dismissal claim, judged on whether a fair and reasonable employer could have done what this one did, that a valid trial takes away.

The 2026 law change

The Employment Relations Amendment Act 2026 received Royal assent on 20 February 2026 and came into force on 21 February 2026. Section 18 of that Act rewrote section 67B(2) and (3). Before the change, section 67B(2) simply said an employee dismissed under a trial could not bring a personal grievance or legal proceedings in respect of the dismissal. A line of cases had tested whether an employee could instead frame the same complaint as an unjustified disadvantage grievance, arguing that the way the dismissal was handled disadvantaged them in their employment. The 2026 wording closes that route where the disadvantage “relates to the dismissal”, while preserving disadvantage claims that do not.

The same Act made other changes that matter to anyone dismissed after 21 February 2026, whether or not a trial was involved. It bars employees earning $200,000 or more from bringing unjustified dismissal claims unless they contract back in, it removes remedies where the employee’s own serious misconduct contributed, and it directs the Authority and Court not to find a dismissal unjustified solely because of procedural defects that did not result in the employee being treated unfairly. Those changes are covered in our unfair dismissal guide. None of them loosen the validity requirements for a trial period. An unsigned or late-signed trial is as invalid today as it was in 2010.

Trial periods compared with probationary periods

People use the words interchangeably and the law does not. A probationary period is dealt with in section 67 of the Act. It must be recorded in writing in the employment agreement, it can be any reasonable length, it can be used for an existing employee moving into a new role, and, crucially, section 67(1)(b) says it does not affect “the application of the law relating to unjustifiable dismissal”. An employee dismissed at the end of a probationary period can bring an unjustified dismissal grievance and the employer has to show it had a good reason and followed a fair process, including telling the employee about concerns and giving them a chance to improve.

A trial period is the opposite. It can only be used for a brand new employee, it cannot exceed 90 days, and it removes the unjustified dismissal claim. Employment New Zealand’s comparison is that on a trial the employer does not have to give a reason before dismissing, while on probation the employer must give a good reason and a fair opportunity to resolve any problems first. An employer cannot run a probationary period after a trial period has ended, and if your agreement calls something a “probation” but tries to remove your grievance rights, it will be read for what it actually is.

Unpaid work trials and trial shifts

A related trap for both sides is the unpaid “trial shift” before a job offer. Employment New Zealand accepts that an employer can ask an applicant to perform short tasks as part of an interview to assess skills, such as asking a barista to make two or three coffees, provided it is made clear the tasks are part of the interview and are unpaid. But its guidance says working a whole shift, or even a few hours, would likely be considered employment, and that payment or the expectation of it makes that more likely still.

The consequence for a trial period is direct. If the pre-employment “trial” was really work, the person has been employed by that employer before the agreement is signed, and a 90-day trial provision in the agreement they sign afterwards is invalid. That is exactly what happened in the Authority’s January 2026 decision, and it is why an employer who wants a valid trial period should not have the candidate do paid work of any kind before the agreement is signed.

How the cases have gone

Two decisions, one from the start of the trial period regime and one from this year, show how strictly the rules are applied.

Smith v Stokes Valley Pharmacy, 2010

Smith v Stokes Valley Pharmacy (2009) Ltd, decided by Chief Judge Colgan in the Employment Court on 26 August 2010, was the first trial period case to reach the Court. Heather Smith had worked at the Lower Hutt pharmacy for its previous owners for more than three years. When the business was sold the new owners offered all staff new agreements containing 90-day trial periods. Ms Smith started work for the new company on 1 October 2009 and signed her agreement on 2 October. She was dismissed on 8 December 2009 with immediate effect and told she had been unsuccessful in completing her trial.

The Court held that she was already an employee of the new company when she signed, so she was not a new employee and the trial provision could not apply. The Chief Judge set out the principle that has governed every case since. Sections 67A and 67B “remove longstanding employee protections and access to dispute resolution and to justice”, and “As such, they should be interpreted strictly and not liberally because they are an exception to the general employee protective scheme of the Act”. Ms Smith was found to have been unjustifiably dismissed and unjustifiably disadvantaged, and the company was found to have breached its good faith obligations.

King v Off the Wall Construction, 2026

George King v Off the Wall Construction Ltd [2026] NZERA 14 was decided by Authority member Claire English on 8 January 2026. Mr King interviewed for a job with the Tauranga concreting company on 16 August 2023 and was sent an employment agreement the next day. He was asked if he would like to do a day’s work for cash on 18 August, agreed, and was paid $350. He signed the agreement, which contained a 90-day trial clause, and started ongoing work on 22 August. On 15 November 2023, after a meeting of about 20 minutes, he was told his employment had ended in accordance with the trial period.

The company argued the cash day was a separate engagement as an independent contractor, so Mr King was still a new employee when he signed. The Authority disagreed. It found his employment began on 18 August, when he “agreed to perform work for OTW, did so under the direction and supervision of Mr Du Plessis, and was paid wages accordingly”. It also found it significant that the day gave the company “an opportunity to assess his suitability for work”, which is the very thing the previous employment rule is aimed at. The member wrote that she was “not attracted to the idea proposed by OTW that it could avoid the strict requirements of s 67A, by the way in which OTW itself classified Mr King’s prior work without consultation with him”.

With the trial invalid, the dismissal was judged on the ordinary test of justification, and it failed because the company’s concerns were never put to Mr King and he was given no chance to respond. He was awarded $13,650 in lost wages and $15,000 in compensation for hurt and humiliation. The decision is a clear warning about paid trial days, and it also shows the cost of relying on a trial clause instead of a fair process. Because the company believed the clause protected it, it ran no process at all, and once the clause fell away there was nothing left to defend the dismissal.

What the research says

Trial periods are argued for on the basis that they encourage employers to take a chance on people they otherwise would not hire. That is the case the Government made when it restored them. Workplace Relations and Safety Minister Brooke van Velden told Parliament at the third reading in December 2023, as reported by RNZ, that “Retaining an employee who is a poor fit is not just costly to the business in terms of the dismissal process, but costly in terms of the whole culture of that workplace,” and that the costs and risks of dismissal could lead to fewer opportunities for jobseekers. The Employers and Manufacturers Association wrote in January 2025 that its members in regional centres with shallow employment pools “tell us this is an important tool for them when they decide to take a chance on someone coming back to the workforce or entering it for the first time”.

The most thorough New Zealand study points the other way. In 2016 Motu Economic and Public Policy Research published work by Nathan Chappell and Isabelle Sin, funded by the Treasury, that used data on every firm and every worker in the country and the staggered introduction of trials for different firm sizes to measure the effect on hiring. It found no evidence that trial periods significantly increased firms’ overall hiring, and no evidence they increased the chance that a new hire was a beneficiary, a recent migrant, a young person, Māori or Pasifika under 25, or a recent education leaver. Dr Sin summarised it this way. “My research shows that the 90-day trial period isn’t helping people get jobs,” and “The main effect of the policy was a decrease in dismissal costs for firms, while many employees faced increased uncertainty about their job security for three months after being hired.” The study did find a weak sign of higher hiring in construction and wholesale trade, which Motu described as statistically weak and possibly down to chance. Labour’s Camilla Belich cited the Motu findings in opposing the 2023 bill.

Whichever side of that debate you are on, the law is what it is, and the practical question for most people is whether the trial they were put on was valid.

If you have been dismissed on a trial period

• Check the trial was valid before you accept the dismissal. Go through the validity list above with your signed agreement in front of you. When did you sign it, and when did you first do any work, including training or a trial shift? Had you ever worked for this employer before? Does the clause state a period of 90 days or less, and does it say you cannot bring a grievance? Were you given time to get advice? If any answer is wrong for the employer, the trial is invalid and you can raise an unjustified dismissal grievance.
• Check the notice. Was notice given before the 90 days ran out, and was it the notice period in your agreement? If you were sent home with pay instead of notice, that is worth raising too.
• Check the reason. Even if the trial was valid, a dismissal that was really about discrimination, harassment, a health and safety complaint or a protected disclosure can still be challenged on that ground.
• Ask for an explanation at the time. The employer cannot be made to give written reasons later, but good faith duties still apply when notice is given, and the response you get is useful evidence either way.
• Make sure you are paid everything. Wages to your last day, holiday pay on your final pay, and anything owed under your agreement. These do not depend on the trial at all.
• Move quickly. A personal grievance has to be raised with the employer within 90 days of the dismissal, or of when you became aware of it. Raising it means telling the employer in writing that you have a grievance and what it is. Free mediation through Employment New Zealand is available to you exactly as it is to any other employee. Our unfair dismissal guide walks through the process and the remedies.

For employers, getting it right

The 75 percent failure rate quoted by the EMA is the reason this section exists. A trial period that is not set up correctly gives an employer no protection at all, and, as the King decision shows, it tends to lead employers to skip the fair process that would otherwise have justified the dismissal. If you want a trial period to hold, do all of the following.

• Put the trial clause in the written employment agreement, state the exact length, and say clearly that you may dismiss during the period and that the employee cannot bring a personal grievance or other proceedings about the dismissal.
• Give the candidate the agreement in advance, tell them they may take independent advice, allow real time for it, and respond to anything they raise. Keep a record of when you sent it and when it came back.
• Get the agreement signed before the first minute of work. No induction, no training day, no paid trial shift and no cash-in-hand job before signature. If you want to see someone work first, keep it to a short unpaid skills assessment that is clearly part of the interview.
• Confirm the person has never worked for you before in any capacity, including casual or contract work through your business.
• Do not use a trial period for an Accredited Employer Work Visa holder, and check any collective agreement that covers the role.
• If you decide to end the employment, give notice inside the 90 days, use the notice period in the agreement, and prefer actual notice over payment in lieu. Explain the decision in person even though a written statement of reasons cannot later be demanded.
• Run a fair process anyway. Raise concerns as they arise and give the employee a chance to respond. If the trial turns out to be invalid, that process is your only defence.

The takeaway

A 90-day trial period is a narrow tool with strict conditions. When every condition is met, it stops a new employee challenging their dismissal as unjustified, and nothing more. When any condition is missed, which the record suggests happens in most contested cases, it does nothing at all, and the dismissal is judged like any other. For employees the first question after a trial period dismissal is always whether the trial was valid. For employers the first question before offering one is whether the agreement will be signed before any work is done. Everything else follows from those two answers.

Common questions

Can any employer use a 90-day trial period in New Zealand

Yes. Since 23 December 2023 the Employment Relations (Trial Periods) Amendment Act 2023 has allowed employers of any size to include a trial period of up to 90 days in a new employee’s agreement. Between May 2019 and December 2023 only employers with fewer than 20 staff could. Trial periods cannot be used for Accredited Employer Work Visa holders.

Is my 90-day trial valid if I signed the agreement after I started work

No. The trial provision must be in a written agreement entered into before you start work, because section 67A only allows a trial for an employee who has not previously been employed by that employer. Once you have done any work, including training, induction or a paid trial shift, you have been employed. The Employment Court decided this in 2010 and the Authority applied it to a single paid day of work in January 2026.

Can I be dismissed on a trial period without a reason

If the trial is valid, the employer does not have to give you written reasons afterwards and you cannot bring an unjustified dismissal grievance. The employer must still give you notice before the 90 days end, using the notice period in your agreement, and must still act in good faith, which the Employment Court has said favours explaining the decision at the time. You can still claim for discrimination, harassment, unpaid wages and other grounds unrelated to the dismissal itself.

What is the difference between a trial period and a probationary period

A trial period can only be used for a brand new employee, cannot exceed 90 days, and removes the right to bring an unjustified dismissal grievance. A probationary period under section 67 can be any reasonable length, can be used for an existing employee in a new role, and does not remove any rights. An employer dismissing at the end of a probation must still have a good reason and follow a fair process.

What changed for trial periods in 2026

The Employment Relations Amendment Act 2026, in force from 21 February 2026, rewrote section 67B so that a valid trial period dismissal also bars an unjustified disadvantage grievance where the ground relates to the dismissal. Disadvantage claims unrelated to the dismissal, and claims for discrimination, harassment and other grounds, remain available. The validity requirements for a trial were not changed.

How long do I have to challenge a trial period dismissal

The same 90 days as any personal grievance. You must raise the grievance with your employer within 90 days of the dismissal or of becoming aware of it. If the trial was invalid you can raise an unjustified dismissal grievance. Free mediation through Employment New Zealand is available to employees on trial periods on the same basis as everyone else.

Related guides

• Unfair dismissal in New Zealand, the personal grievance process and the 90-day rules
• Not being paid correctly in New Zealand, final pay and holiday pay owed
• Contractor or employee in New Zealand, why it matters and how to challenge it
• Workplace bullying and harassment in New Zealand, what you can do
• Can my employer make me redundant? Your rights in a New Zealand restructure in 2026
• Sick leave, annual leave and public holiday pay in New Zealand

Where to get free help

• Employment New Zealand, employment.govt.nz or 0800 20 90 20, for the rules, free mediation and the Labour Inspectorate.
• Community Law, communitylaw.org.nz, free legal advice, including its chapter on trial periods.
• Citizens Advice Bureau, cab.org.nz or 0800 367 222, free guidance on your rights at work.
• Your union, if you belong to one, can raise a grievance and represent you at mediation. The Council of Trade Unions can point you to the right union.
• Employment Relations Authority, era.govt.nz, where unresolved grievances are decided and where past determinations can be read.