The 90 day trial period allows both employees and employers to exit an employment contract ‘without prejudice’ should the arrangement transpire to be something other than what they expected.

Termination during the 90 day trial period can be nominated as a different period of notice than for the agreement beyond the 90 days. It must be clear to the incoming employee what the terms are and how you will communicate with them throughout the period regarding their performance (and they with you).

Firstly, to enforce a 90 day trial termination, you must have the 90 Trial in the Individual Employment Agreement. If you do not have a robust Individual Employment Agreement, the HR Docs template can be found here https://hrdocs.co.nz/product/employee-agreement-bundle/. We recommend you work from a standard template and modify as required – always using the template as your base rather than modifying the agreement from another employee.

Secondly – while this has at the time of writing not yet been tested in a court of law, you may not terminate an Individual Employment Agreement under the 90 Day Trial for no apparent reason. There must be a clear trail of communication with the employee around their performance or fit with the team. If you do have to terminate an employee within the 90 Day trial, it should not come as a shock for them.

This is why the initial induction and training processes  https://hrdocs.co.nz/product/induction-manual/ need to be robust. Failing to introduce induction processes at the outset of employment then terminating within the 90 Day Trial Period would be seen as questionable and unethical employment process. Always commence the 90 Day Trial Period with the presumption that you will not be required to enforce the termination.

In the situation where you do have to terminate the employment due to poor fit with your team or inability to conduct the work required, you must include in the letter that you wish to terminate the employment stating your reasons and clarifying what steps you have put in place to correct the issues arising. It is a good idea to reference discussions and file notes to make it as clear as possible that you have acted with good intention.

As the 90 Trial Period is a ‘without prejudice’ period, a certificate of service  https://hrdocs.co.nz/product/certificate-of-service/ is not required from you, but in the interests of goodwill you may if you wish offer it if any internal training received during the brief employment may be of value to the employee.

We recommend that you use our template  https://hrdocs.co.nz/product/90-day-trial-termination-letter/ for the 90 day trial termination to ensure that your processes are legally correct and that you present it to the employee in person and also send a PDF by email for their records.

For more information on HR processes required for running your business with productive employees without risk of oversight or risk of grievance, view this FREE webinar: