Posted by De Novo Legal - last updated 25 November 2025

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There are numerous pitfalls when it comes to using trial periods, making New Zealand employers rightly hesitant when it comes to terminating employment during a trial period. We are often asked questions about trial periods, especially about when notice of termination can be given.  

When does a trial period begin?

NZ law states that a valid trial period starts “at the beginning of the employee’s employment”. The Employment Court has interpreted this as meaning the trial period starts on and includes the date the employee actually starts work. This gives effect to the intention of the law, which is to enable the employer to assess the employee’s performance over the trial period.  

e.g. Sarah signed her employment agreement, which included a valid trial period provision for a 90-day trial period, on Wednesday, 1 May 2024, but her first day of work was Monday, 6 May 2024. Her trial period therefore started from and included Monday, 6 May 2024.  This is day one of her 90 day trial period.

When does a trial period end?

If the trial period provision has been drafted in accordance with the relevant legal requirements, the trial period will run for 90 calendar days (unless the trial period is stated to run for a shorter period, in which case it will run for that period). The trial period continues to run unbroken if the employee takes any leave during that period. The 90 calendar days includes both the start and end dates.

e.g. the last day of Sarah’s trial period, being day 90, would have been Saturday, 3 August 2024. Therefore, the trial period could no longer be relied on to terminate Sarah’s employment from Sunday, 4 August 2024 onwards.

When should the employer give notice of termination, if they want to rely on the trial period?

An employer must give the notice specified in the trial period provision before the end of the trial period, whether the termination takes effect before, at, or after the end of the trial period. However, it’s best practice not to wait until the very last day to give notice, just in case you’ve miscalculated!

e.g. the employer could have given Sarah notice of termination in accordance with her trial period provision on any date from and including Monday, 6 May 2024 to Saturday, 3 August 2024.

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The formula for calculating the last date an employer can give notice of termination to an employee on their 90-day trial period is therefore:

The date employee starts work + 89 calendar days

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Importantly, in order to rely on the protections that a trial period offers, the employer needs to have obtained the employee's written agreement to the trial period BEFORE the employee began working for the employer - best practice is to ensure all new starters sign and return their employment agreements well before the day they begin work. Further, the employee cannot have worked for the employer before, in any capacity. The trial period provision must also be drafted to reflect specific requirements in the Employment Relations Act, including by stating the length of the trial period and stating that if the employer terminates employment during the trial period, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.

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This post provides general information only, always seek specific legal advice for your particular situation.  

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