Ninety-day trials and the 30-day rule

The recruitment process is expensive, so you want your new recruits to succeed

All employers can now include a 90-day trial period clause for new employees. Parliament passed the change on 23 December 2023. The trial period is for up to 90 calendar days.

There are still criteria for the trial period to be valid, including that it may only be used for new employees.* During the trial period, the duty of good faith still applies to both parties. The employer should, where possible, provide: a thorough induction process; buddying with an existing employee; a training-needs analysis that identifies areas where further specific training might be required; regular meetings to discuss how things are going for the employee and to provide feedback; managing areas that need improvement; and giving appropriate support.

The recruitment process is expensive, so you want your new recruits to succeed. But even with the best recruitment and induction process, sometimes the recruit doesn’t meet your expectations, either in performance or team fit or sometimes both. If you are in this position, you should still follow a fair dismissal process, and ideally, will have been providing feedback through the trial period.

If you decide to give notice of termination under the 90-day trial, this should be in writing. This notice of termination must be given within the trial period, although the notice period can take you outside the 90 days. If included in the employment agreement, you could make payment instead of notice. We would expect the notice period under a “trial clause” to be shorter than the notice period in the “termination on notice clause”. There should be a valid reason for the dismissal, although under legislation you do not need to provide this.

Employees can still bring a personal grievance for sexual or racial harassment, unjustified disadvantage, discrimination, or failure to comply with the continuity provisions where there is a sale or transfer of business.

If your practice is a party to the PHC MECA, all employees whose role falls under the coverage of the PHC MECA and are New Zealand Nurses Organisation members are employed under the terms and conditions of the PHC MECA. They shouldn’t have an individual employment agreement, so full details of the agreed 90-day trial provisions, including the notice period, should be included in the offer letter to be signed by the employee.

All new employees whose role is covered by the PHC MECA are employed under the terms and conditions of the collective agreement for the first 30 days, whether they are NZNO members or not. Therefore, for non-NZNO members, you must provide them with a copy of the PHC MECA and your draft individual employment agreement. If they choose to join the NZNO, then after 30 days, their employment continues under the PHC MECA. If they decide not to join the NZNO, then the terms of the individual agreement start.

Fiona Mines is a HealthyPractice adviser/administrator, MAS