Trials and probationary periods

If you’re hired on a trial or probationary period, your employer must include the details in your employment agreement. If you have not agreed to a trial or probationary period before you start your job, it is not legal.

Trials and probationary periods

Your employer can use a trial or probationary period to assess that you can do a job. They can use 90 days trial periods when hiring new employees and this trial period is up to the first 90 calendar days of their employment. You cannot be on a trial period if you’ve been employed by that employer before.

They must pay you while you're on the trial or probationary period.

If your employer is hiring you on a certain category of work visa, they will need to consider immigration requirements relating to trial periods. For more information, visit:
Immigration NZ(external link)

A valid trial period:

  • must be agreed to in the employment agreement before the employee starts work, otherwise the trial period is invalid
  • must have a valid notice period in the employment contract
  • can be used in any industry and for any job
  • must be agreed by the employer and employee in good faith – an employee cannot be forced into being employed on a trial period
  • means that the employee cannot bring a personal grievance for unjustified dismissal or other legal proceeding about their dismissal (if the employer has given the right amount of notice to the employee)
  • must be in the employment agreement and must state that:
    • from the very start of their employment, the employee will be on a trial for a set period which is not more than 90 days (but can be less). The exact time period must be stated, for example, it could be 30 days, or 90 days, or another stated time period, and
    • during the trial, the employer can dismiss the employee, and
    • the employee cannot bring a personal grievance or other legal proceedings about their dismissal.


If an employee is a union member employed on a collective employment agreement, they cannot have a trial period (in their individual terms and conditions) inconsistent with the collective employment agreement. For example, if the collective employment agreement states that an employee cannot be employed on a trial period, then they cannot have a trial period in their individual terms.

Our Employment Agreement Builder can help you write a trial period provision for an employment agreement.

Employment Agreement Builder(external link)

When a trial period ends

Your employer must give you the amount of notice in your employment agreement if your employment will not continue after the end of the trial period. If they do not give you notice, then you are no longer on trial when the trial period ends and your employment continues. 

If your employer has given you the amount of notice in your employment agreement, you cannot bring a personal grievance for unjustified dismissal or other legal proceeding about your dismissal. 

Your rights

When you're on a trial or probationary period: 

  • all the minimum employment rights and responsibilities apply (health and safety, , , , and and equal pay) – except you cannot bring a personal grievance for unjustified dismissal if you're on a trial period
  • you must be treated the same as other employees who are not on a trial or probationary period
  • you must be paid.

Employee rights and responsibilities

You can still raise a personal grievance on the grounds of unjustified dismissal if: 

  • you started working before the contract was signed 
  • if the employment contract does not mention that there is a trial period or does not contain a notice period in case of dismissal or resignation.

You can also still bring a personal grievance on other grounds, for example: 

  • discrimination
  • sexual or racial harassment
  • pressure about union membership
  • if the employer does something that unjustifiably disadvantages you.

In such cases, the employee may be able to take a personal grievance against the employer and the trial period may be deemed invalid by the Employment Relations Authority (ERA). Cradock versus Allied Investments case is an example of where the trial period was found invalid.

If an employer does not give the employee notice by the end of the trial period, then they are no longer on trial, and their employment will continue. A mediation service is available to employees and employers at any time.

Personal grievances

Jennifer’s boss, Omesh, tells her that she has the job on Monday, she starts work on Tuesday and she signs her employment agreement on Wednesday.

Jennifer’s employment agreement has a trial period for 60 days, but this is invalid because Jennifer did not sign the agreement before she started work.

Omesh cannot dismiss Jennifer under the trial provision and if he did, she could bring a personal grievance for unjustified dismissal. If Omesh wanted a trial period for Jennifer, he should have made sure that she agreed to it, had a chance to get advice and raise any issues, and signed her employment agreement before she started work.

Probationary periods

Probationary periods:

  • can be used if you're new to the organisation or if you're trying a new role for the same employer
  • do not have a fixed time limit, so they can be used for a longer assessment period if you and your employer agree.

A probationary period cannot be applied after a trial period and employers who want to put a probationary period clause into an employment agreement should seek expert advice. A probationary period:

  • can provide a fair opportunity for the employer to assess your skills
  • can be used when you start a new job (even if you already work there, but you’re changing jobs)
  • must be recorded in writing in your employment agreement (the clause should clearly state that there is a probationary period and how long it will last); if you and your employer agree to it while talking, but your employer did not put it in the employment agreement, then a probationary period cannot be used
  • can be for any amount of time, but the time it’s going to last for must be recorded in the employment agreement
  • is paid; employers cannot use a probationary period to get work done for free
  • does not limit your rights and obligations and that of the employer
  • must be negotiated and used in good faith
  • must be a reasonable length of time considering all the relevant circumstances of the employer, the employee and the job.

During the probationary period

During the probationary period, the employer must follow a fair process. This includes:

  • telling you if there are any issues with your work (and if there is a chance your employment might not be continued after the probationary period ends)
  • telling you what these issues are, and what good performance in this area looks like
  • providing you support, and ongoing and appropriate training

Growing performance, training and development

  • giving you the opportunity to improve, which means that your employer should be giving you feedback, support, and training throughout the probationary period so that you know there are issues and have a chance to improve before the end of your probationary period.

It is good practice for employers to tell you when you’re on a probationary period when you might expect to receive training and feedback at the start of their employment. The employer must follow through on any commitments they have made to you.

In some situations, work is going so well that an employer may choose to remove the probationary period and confirm employment early. This can be done if you agree, the agreement should be in writing because it is a change to the employment agreement.

When a probationary period ends

If the probationary period has gone well, no one needs to do anything. You will continue in your role. Your employer cannot just tell you to leave your job at the end of the probation period. They must:  

  • have assessed you fairly 
  • told you why your performance was not good enough and that they intend to end your employment
  • give you an opportunity to respond to these points. 

If they still decide to end your employment, they must give you the notice stated in your employment agreement. 

You can raise a personal grievance on the grounds of unjustified dismissal, if, for example: 

  • you think they did not have a good reason to dismiss you
  • you were not given appropriate advice and training on how to do the job effectively, or
  • you were not fairly assessed.

What your employer must do

Your employer must: 

  • include details of the trial or probationary period in your employment agreement and make sure you sign it before you begin work
  • give you the notice in your employment agreement if your employment will not be continuing after the trial period.

Your employer does not have to give you a reason for dismissal if you've been on a trial period. 

If you are on a probationary period, your employer must follow a fair process before dismissing you, including telling you if there are issues with your work and providing opportunities and support to improve.

Employee rights and responsibilities

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