90-Day Trial Period NZ: Legal Guide for Employers & Employees

There’s a moment in every new job when you wonder: what happens if this doesn’t work out? For small businesses in New Zealand, the 90-day trial period — reserved since 2019 for employers with fewer than 20 staff — answers that question with unusual simplicity, letting both sides test the fit before full employment protections kick in.

Maximum duration: 90 calendar days ·
Employer size restriction: Fewer than 20 employees ·
Contract requirement: Must be in written employment agreement ·
Employee history condition: Must not have worked for the employer before ·
Dismissal reason: No reason required ·
Notice period: No statutory notice required (subject to agreement)

What is a 90 day trial period?

Definition under the Employment Relations Act

A 90-day trial period is a statutory provision in New Zealand employment law that allows an employer to dismiss a new employee within the first 90 calendar days without giving a reason. The legal foundation sits in sections 67A and 67B of the Employment Relations Act 2000 (Employment New Zealand (government regulator)).

Key characteristics

• The trial period cannot exceed 90 calendar days from the start of employment (Peninsula Group (NZ employment relations advisers)).
• The clause must be written into the employment agreement and signed by both parties before the employee starts work (Rainey Collins Lawyers (employment law practitioners)).
• The employee must be genuinely new to the employer – having worked for that business before invalidates the trial (Employment New Zealand (government regulator)).
• Only available to employers with fewer than 20 employees (since the 2019 amendment) (Rainey Collins Lawyers (employment law practitioners)).

The pattern is clear: the law grants speed to small employers but demands strict compliance in return.

Is a 90 day trial period legal in NZ?

Current legal position

Yes, it is legal but only for small employers. Since the legislative change that took effect before December 2023, the restriction to employers with fewer than 20 employees has remained in force (Rainey Collins Lawyers (employment law practitioners)). Larger businesses cannot use the 90-day trial period; they must rely on probationary periods, which carry different legal consequences.

Conditions for legality

• The trial period must be included in a written employment agreement signed before the employee starts work (Peninsula Group (NZ employment relations advisers)).
• The employee must not have worked for the same employer previously (Employment New Zealand (government regulator)).
• Dismissal during the trial does not require a reason – except dismissal based on unlawful discrimination (race, sex, disability, etc.) is illegal (Employment New Zealand (government regulator)).
• The clause must specify that the employer may dismiss the employee during the trial period and that the employee has no right to bring a personal grievance for unjustified dismissal (Rainey Collins Lawyers (employment law practitioners)).

The catch: when the clause fails, the employer loses all the flexibility it promised.

How does the 90-day trial work in NZ?

Implementing a trial period

The process is straightforward but unforgiving. The employment agreement must contain a trial period clause that states the commencement date, the duration (up to 90 days), the employer’s right to dismiss during the trial, and the removal of personal grievance rights for unjustified dismissal (Rainey Collins Lawyers (employment law practitioners)). Both parties must sign before the employee’s first day of work.

Step-by-step process

1. Prepare the contract – Write a trial period clause that meets the legal requirements. Use a template from Employment New Zealand or a qualified adviser.
2. Check eligibility – Confirm the business has fewer than 20 employees and the candidate has never worked for the employer before.
3. Sign before start – The employee must sign the agreement containing the trial clause before commencing work (Peninsula Group (NZ employment relations advisers)).
4. Count the days – The trial runs for 90 calendar days from the employment start date. It cannot be extended (Retail NZ (industry body)).
5. Dismiss (if needed) – If performance or fit is not satisfactory, the employer can dismiss at any time during the 90 days. Notice must be given within the period, even if the final day falls after (Rainey Collins Lawyers (employment law practitioners)).
6. Pay and document – Pay all wages up to the time of dismissal and provide a termination letter (recommended, not legally required) (Lane Neave Lawyers (NZ employment law specialists)).

Can you get fired within the first 90 days?

Termination rules during trial period

Yes, the employee can be dismissed at any time during the 90-day trial period without the employer needing to provide a reason. This is the core feature of the trial period: it removes the employee’s right to bring a personal grievance for unjustified dismissal (Community Law (NZ legal advice network)).

Employee protections

• Dismissal cannot be based on unlawful discrimination (race, sex, disability, age, etc.) (Employment New Zealand (government regulator)).
• The employee still has the right to minimum employment standards: minimum wage, annual holidays, sick leave, and rest breaks (Employment New Zealand (government regulator)).
• If the employer skips the trial clause or uses it illegally (e.g., employer has 20+ staff), the dismissal may be challengeable as unjustified (Lane Neave Lawyers (NZ employment law specialists)).

What this means: the employee’s true safeguard is the procedural integrity of the trial clause, not the fairness of the dismissal.

What are employee rights during a 90-day trial period in NZ?

Employee rights and limitations

Employees on a trial period have the same minimum entitlements as all other workers – minimum wage, holiday pay, and rest breaks – except the right to challenge a dismissal as unjustified (Employment New Zealand (government regulator)). They must also be treated the same as non-trial employees in all other respects.

Resignation and notice

• Employees can resign at any time during the trial period (Retail NZ (industry body)).
• No notice period is required from either party unless the employment agreement specifies one (Peninsula Group (NZ employment relations advisers)).
• If the employee is dismissed, the employer must pay all wages up to the time of dismissal, including any outstanding holiday pay (Employment New Zealand (government regulator)).

Trial period timeline: from introduction to today

• 2009 – 90-day trial period introduced for all New Zealand employers, regardless of size (Rainey Collins Lawyers (employment law practitioners)).
• 2019 – Legislation restricts eligibility to employers with fewer than 20 employees (Rainey Collins Lawyers (employment law practitioners)).
• 2026 – Latest guidance from Employment New Zealand confirms current rules remain unchanged (Employment New Zealand (government regulator)).

The pattern: the law has tightened eligibility but kept the core mechanism intact.

What’s clear and what’s not

The law is well settled on the core rules, but some edges remain fuzzy – especially for visa holders and returning staff.

What’s clear

• Trial period is legal for employers with fewer than 20 employees (Employment New Zealand (government regulator)).
• Must be in written contract before work starts (Peninsula Group (NZ employment relations advisers)).
• Employee must be new to the employer (Employment New Zealand (government regulator)).
• Dismissal does not require a reason (Community Law (NZ legal advice network)).
• Employee has no personal grievance rights for unjustified dismissal during trial period (Community Law (NZ legal advice network)).

What’s unclear

• Application of trial periods to Accredited Employer Work Visa (AEWV) holders – specific conditions are not fully detailed in public guidance.
• Whether a trial period can be used for an employee returning after a break (if considered “new”).
• Enforcement practices when employers misuse trial periods for larger businesses.

The implication: employers need legal advice for edge cases, and employees should treat any trial clause as a potential vulnerability.

Perspectives from the experts

“The trial period does not last longer than 90 calendar days; the employee has not worked for the employer before, and; the trial period is at… [the] commencement of the employment.”

Employment New Zealand (government regulator) For more information on New Zealand’s 90-day trial period, check out this guide on the Sri Lanka national cricket team.

“90-day trial periods allow NZ employers to terminate a new employee without any reason or consequences.”

Peninsula Group (NZ employment relations advisers)

“90-day trial periods are governed by section 67A and 67B of the Act and allow an employer to dismiss the employee within those 90 days.”

Lane Neave Lawyers (NZ employment law specialists)

Across experts, the message is consistent: the trial period is a powerful tool for small employers, but its legitimacy depends entirely on the paper trail.

Summary

The 90-day trial period gives small NZ employers a fast exit ramp from a new hire that isn’t working – no reasons, no grievances, no fuss. But it’s also a trap: one administrative slip (missing signature, wrong employee count, late clause) and the protection vanishes, leaving the employer exposed to a full personal grievance claim. For the employee, the lesson is equally sharp: the trial period is a real window of vulnerability, but minimum rights and anti-discrimination protections still stand. For a small business owner weighing the hire, the choice is clear: follow the letter of the law, or risk paying the price of not doing so.

Frequently asked questions

The underlying thread: each question returns to the same hinge – the trial’s validity rests on paperwork, not on reasonableness.