The first employment case under the 90-day trial law was recently tested in the Employment Court, where the Court found in favour of the dismissed employee.

As a result of the Court’s decision, employers and employees should keep in mind the following factors regarding 90-day trial periods:

They cover new employees only … 

A 90-day trial provision can only be included in an employment agreement for a person who has not been previously employed by that employer.

A new employee does not include an employee who continues to work in the same place of employment but is employed by a different employer because the business has been sold/changed owners. To rely on a 90-day trial provision in this situation the employee must enter into and sign a new employment agreement with the new employer before the new employer takes control and ownership of the business. 

While this interpretation of the law is controversial, it is how the courts have interpreted the trial provision to date and will therefore determine how the term “new employees” will be defined.

The parties must meet obligations included in the trial provision …

If the trial provision includes obligations such as the employer assisting the employee with training, or to hold regular meeting and appraisals for feedback, then employers must  make sure they do this.

If not, the employer may be in breach of the trial provision and they will not be able to rely on the trial provision for dismissing an employee. If the employer fails to undertake their obligations and terminates the employment agreement, the employee may raise a personal grievance for unjustified treatment and/or unjustified dismissal.

Notice of termination must be given in accordance with notice period in agreement

Employers must give notice of the termination under the trial provision in accordance with the notice period in the agreement. For example, if an employer decides to terminate the agreement on the employee’s 89th day of employment, the employee is required to either work out the notice period or be paid in lieu of notice period by the employer.

Reasons for dismissal should be given at the time of termination …

When giving notice of termination under a 90-day trial provision, employers should give a reason/s for that termination to the employee.

Therefore, the employee should be informed of their alleged inadequacies during the trial period so they have the opportunity to improve in the future.

However, employers are not required to give written reasons for the termination, n accordance with section 120 of the Act.

Both parties must continue to act in good faith …

The Court also ruled that the general “good faith” obligations still apply in employment situations involving 90-day trial period.  Therefore, employers should be aware of these obligations to ensure they are acting as a fair and reasonable employer would.


The law relating to 90-day trial provisions is new and will continue to be tested in the Court for some time. It is important that you are aware of your rights and obligations when relying on the trial provisions.