The first few months in a new role are an important period for both employees and employers. It’s a time to settle in, understand expectations, and see how well the employment fit works in practice. Many employers use trial or probationary periods at this stage to help assess fit before making a long-term employment commitment, but the two are not the same, and getting them wrong can create unnecessary legal risks.
Here’s a clear, practical overview of how each works under New Zealand employment law.
Trial Periods
A 90‑day trial period can only be used for new employees who have never worked for the employer before. When valid, it allows an employer to dismiss an employee within the first 90 calendar days without the employee being able to raise a personal grievance for unjustified dismissal.
However, trial periods only apply if everything is done correctly. They must:
- Be clearly outlined in the employment agreement
- Be signed before the employee starts work
- Be agreed after the employee has had a reasonable opportunity to seek independent advice
If any of these steps are missed, the trial period may be deemed invalid.
It’s also important to remember that if an employer chooses to enact a 90-day trial period clause they must provide the notice period stated in the agreement (or reasonable notice if none is specified) and other personal grievance rights such as discrimination or harassment continue to apply.
Probationary Periods
A probationary period is a set evaluation timeframe used to assess an employee’s performance or suitability and can apply to both new and existing employees.
There is no set maximum length for a probation period, although it must be reasonable (three months is a common duration). Unlike trial periods, probationary periods do not remove the right to raise a personal grievance.
That means if performance or suitability concerns arise, employers must follow a fair process. This includes:
- Clearly explaining expectations and concerns
- Providing regular feedback
- Offering support or training where appropriate
- Giving the employee a genuine opportunity to improve
If after following the above steps there are still performance or suitability concerns, employers should clearly outline the reasons for considering an end to employment, supported by appropriate information, and give the employee a genuine chance to provide their feedback. While a probation period does not offer the same protections as a 90‑day trial period, following a fair and reasonable process can still allow decisions to be made efficiently, without the need for a drawn‑out process.
The key when it comes to trial periods and probationary periods is not just which option you choose, but how well you manage it. Clear agreements, early conversations, and consistent feedback during the first 90 days can significantly reduce risk and set up stronger employment relationships from the start.