Probationary Periods vs 90-Day Trials: What Are Your Rights?
If your employer has put you on a probationary period, it is incredibly important to understand that you still have full employment rights under New Zealand law. Many Kiwis mistakenly believe that a probationary period is exactly the same as a 90-day trial period, assuming they can be let go instantly without warning. This is a common and costly misconception.
Unlike a standard 90-day trial, being on probation does not strip away your right to challenge an unfair dismissal. If your employer wants to terminate your employment during a probationary period, they cannot simply hand you a notice and show you the door. They are legally required to act in good faith, provide you with proper training, give you clear feedback on your performance, and follow a strict, fair disciplinary process. If they fail to do this, you may have grounds for an unjustified dismissal claim.
A probationary employee still has to be paid and receives all the benefits that a permanent employee would get, and the probation period must be set out and agreed to in the employment agreement. If you have an existing employment agreement it should be updated to include the probationary period.
The probation period can sometimes be longer than 90 days, but only if that is reasonable and agreed to. During the probation period, you should be made aware of what is expected to perform the job satisfactorily and you should be monitored and receive feedback.
If there are any problems during the probation period your employer must still follow the correct disciplinary process that is laid out in your employment agreement.
In the case, you have been on a probationary period and have been dismissed at the end of it give us a call so we can check that everything has been done fairly and correctly. If the correct procedure has not been followed we can raise a personal grievance for you.
Comparison Table : 90 Day Trial vs Probationary Period
| Feature | 90-Day Trial Period | Probationary Period |
|---|---|---|
| Legal Basis | Governed by Sections 67A-67B of the Employment Relations Act. | Governed by Section 67 of the Employment Relations Act. |
| Who It Applies To | New employees only. | New or existing employees transitioning into a brand new role. |
| Can You File an Unjustified Dismissal Claim? | No, provided the trial clause is fully compliant and valid. | Yes. Normal fair disciplinary and dismissal processes must still be strictly followed. |
| Employer Obligations | Must give reasonable notice of dismissal, but does not have to provide extensive feedback sessions. | Must actively provide training, clear guidance, and explicit warnings regarding shortcomings. |
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