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Costly 90 Day Trial Period Lessons To Be Learnt

Published 19 Oct 2012

Sus-An Stirling was offered a job in dispatch and accounts at Porirua City Towing on 4th November 2011. She commenced work on 21st November, but had only been given a deficient draft employment agreement. Discussions took place on terms and conditions after the Employee commenced work and before 23rd December 2011, when the agreement was finally signed.

In December the Employee had a heated argument with another employee and also in January after a dispatch job went wrong. 
The Employer felt that the Employee had not gained the respect of the drivers and that things weren't working out. The Employee was dismissed without notice on 21st January. The Employer thought they were entitled to make an instant dismissal under the terms of the 90 Day Trial Period legislation.

The Employee then raised a personal grievance with the Employment Relations Authority claiming unjustified dismissal. 

The Employment Relations Authority's Decision:
“The decisions of the Employment Court in the Smith and Blackmore cases make it clear that that a Trial Period contained in an employment agreement can only be enforceable when it is recorded in writing and signed prior to the employee commencing work”.

“I find that the Trial Period provisions contained in Sus-An’s employment agreement are not enforceable as they were not agreed by Sus-An prior to her commencement of employment with” City Towing.

Summary of Orders:
Porirua City Towing is to pay Sus-An Stirling:

a)       The sum of $11050.00 (gross) minus PAYE being equal to three months’ wages (nett).
b)       The sum of $5000 as compensation for humiliation, loss of dignity and injury.

EAL have been emphasising the importance of getting the recruitment process correct - and especially when a 90 Day Trial Period is proposed.

The Employment Court has adopted a strict approach on the enforceability of 90 Day Trial Period provisions. This is because the 90DTP provisions remove longstanding Employee protections and access to dispute resolution and justice - they take away standard Employee rights when used for dismissals.

The EAL document called "Putting Employment Agreements In Place For Job Candidates" contains detailed information on how to do this correctly and it also includes sample letters of offer. The documentation is fully compliant with the current law. 

This is available for purchasing online from
Please note that Employers Support Package members can access this document from the Library Section of the Employers Toolbox at