90 Day Trial Periods are a single assessment period for a maximum duration of 90 calendar days starting from the commencement of employment. They can be of less than 90 days if preferred, but never more.

Since December 23rd 2023 the Government has reopened the 90 Day Trial Period legislation to be available for use by any size employer, removing the restriction of 19 staff or less.

Terminating an employee under the provisions of the 90 Day Trial Period is straightforward provided the Employment Agreement has been implemented correctly from the outset.

The 90 Day Trial period is a very effective tool for Employers if applied correctly, but like most issues in Employment Law process is paramount.

Here are a couple of quick tools to help you with your process to check the validity of your 90 Day Trial Period if you plan to terminate employment.

Use the calendar checker to ensure you are within your Trial Period duration or create a reminder. The termination wizard checks your process and will give you recommended clauses for your Employment Agreements and a termination letter should you need it.

Before you take any steps to terminate an employee under the provisions of the 90 Day Trial Period we recommend you talk to us first.

Basic rules are;

• A compliant 90 Day Trial Period clause is contained in the employee’s employment agreement – the trial period clause must state that if the employee is dismissed under the trial period they cannot challenge the dismissal;
• The employee is provided with a reasonable opportunity to seek independent advice on the proposed offer of employment before starting, we recommend at least 3 to 5 working days minimum;
• The employer has never previously employed the employee before in any capacity;
• A 90 Day Trial Period cannot be extended under any circumstances;
• The employee signs and returns their employment agreement before starting work;
• If the employee is terminated under the 90 Day Trial Period, then they must be given notice as per the Trial Period clause contained in the employee’s employment agreement. Namely, the correct period of notice under the trial period clause of their employment agreement must be given; and
• Notice of termination must be given before the expiry of the 90 Day Period (which are calendar days not working days).
• From 29th October 2023, employers who are accredited under the ‘Accredited Employer Work Visa’ (AEWV) scheme cannot use 90 Day Trial Periods with migrant workers. This is due to Immigration New Zealand’s policy that has strengthened protections against migrant worker exploitation, which extend to preclude the use of 90 Day Trial Periods.