Trial Shifts & Pre Training: When NZ Employment Trial Periods Are Invalid

Trial Periods and Early Training: When Timing Makes Them Invalid

The Employment Relations Authority (ERA) has consistently held that a 90-day trial period will not protect an employer if employment starts before the agreement is signed. This includes situations where a new hire begins induction, shadowing, or training under the employer’s direction before the employment agreement is executed. In such cases, the trial period is considered invalid because employment has already commenced. The legal foundation for this principle is found in the Employment Relations Act 2000, which requires that trial provisions be agreed to in writing before work begins.

 

Trial Periods Don’t Apply If the 90-Day Limit Is Missed

Even if a trial period clause is valid at the outset, it provides no legal protection if dismissal occurs after the 90-day period has expired. Any termination beyond that timeframe is treated as a standard dismissal and must meet the justification test under the Act. The Ministry of Business, Innovation and Employment (MBIE) explains these strict timing requirements clearly in its official guidance on trial and probationary periods.

 

Agreements Must Be Signed Before Employment Starts

An employment agreement must be fully signed before the employee performs any work — including unpaid training or familiarisation. Once the employee begins following instructions or undertaking tasks, employment has legally started, and a trial clause signed afterward will be unenforceable. This principle is reinforced by case law such as Allied Investments Ltd v Cradock [2019] NZEmpC 159, where the Employment Court ruled that an unsigned agreement could not retrospectively impose a trial period once work had already commenced.

 

Use Authoritative Sources, Not Just Summaries

While media summaries and HR articles can help illustrate practical outcomes, they are secondary sources and don’t carry legal weight. For the most accurate understanding of how the ERA applies the law, employers should review the relevant legislation and consult published determinations. These are available through the ERA determinations database, which contains recent decisions and reasoning used by the Authority.