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What You Need To Know About 90 Day Trials

4 April 2019
Employment agreement 90 day trials Christchurch Canterbury Godfreys Law

One of our specialty areas at Godfreys Law is around employment. Partner, Brad McDonald has been practicing law for nearly two decades and he’s helped many Canterbury businesses and employers navigate employment issues.


Over his 20 years as a lawyer, Brad has seen a lot of different employment agreements. Some from employers who attempted to write up their own agreements. Others attempted to use the MBIE Employment Agreement Builder, which can be very effective if used properly, but not everyone follows the instructions.

Right Employment Agreement

Our team has also seen employment agreements written up by other lawyers who don’t specialise in employment law or even accountants, and those agreements have really reinforced the need to see the right specialist for the right job. After all, you wouldn’t come to Godfreys Law to file your tax return so why would you see your accountant for an employment agreement?

Over the years, since the 90 Day Trial period was introduced, our team has also seen a lot of defective provisions where business owners have tried to write or adapt their own employment agreements. Sometimes attempting to save money by doing it yourself has landed business owners and employers in very hot water.


90 Day Trial Mistakes

There are three key areas where business owners slip up when it comes to 90 Day Trial periods.

  1. No Contract - The 90 Day Trial period is not automatically included when you hire a new employee. There are clauses that need to be added to your written employment agreements and extra documents that must be provided to your potential new hire before they start work. We’ve seen a number of cases where employers have tried to dismiss someone under the 90 Day Trial when they have no mention of it at all in employment agreements.

  2. DIY Contract - Employment agreements are specialist documents, and shouldn’t be something that you attempt yourself if you would like them to be legally binding. For a number of technical legal reasons, if the 90 Day Trial period clause is not worded properly and you attempt to enforce it, the ex-employee can bring an unjustified dismissal case against you.

  3. Not Following Process - The most watertight employment agreement in the world won’t help you if you don’t follow the process. You must make sure the employment agreement and letters advising the new employee of the 90 Day Trial period are signed, dated and in your hand before that employee starts working for you. If you don’t do that, it’s possible the employment agreement and the 90 Day Trial period could be considered null and void.

90 Day Trial Changes

After the new Employment Relations Amendment Act comes into force May 2019, businesses with fewer than 20 employees will still be able to use 90 Day Trial periods. Businesses with more than 20 employees will not. However, if you have more than 20 employees and you’re still concerned with protecting your business and making sure you find the right staff to join your team, you may be able to use a probationary period in your employment agreements. Please contact us if you want to know more.

At Godfreys Law we have a team of employment law specialists who can help you stay up-to-date with the Employment Relations Amendment Act, 90 Day Trial periods, probationary periods, employment agreements, or pretty much any legal problem you may face. If you have questions or need some help, contact our team on 03 366 7469.

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