The employee had not previously worked for the employer before the trial employment began.
90-DAY TRIAL DISMISSAL
A trial clause only works if the legal requirements were actually met.
A valid trial period can materially limit an employee's ability to challenge a dismissal, but the clause has strict prerequisites and does not remove every employment right.
Important: Trial periods are a specialised exception. Do not assume a clause headed ‘90-day trial’ is automatically valid.
UNDERSTAND THE PROBLEM
The words '90-day trial' do not make a trial period valid.
A valid statutory trial period can remove the usual right to challenge the dismissal itself, but only if the legal requirements for the trial arrangement are met. The timing of the employment agreement and whether the employee had worked for the employer before are often decisive.
Trial periods also do not erase every employment right. Pay, holidays, discrimination protections, good faith obligations and other claims can still matter depending on the facts.
WHAT MATTERS
Validity questions to check first
The trial provision was agreed and included in the employment agreement, and the agreement was signed before the employee started work.
The trial period did not exceed 90 calendar days and the dismissal/notice occurred in accordance with the clause and law.
The claim being considered is actually barred by the trial regime; not every employment claim disappears because a valid trial exists.
THREE QUESTIONS FIRST
Get these straight before the argument gets bigger.
Was the employment agreement signed before you started work?
Had you worked for the employer before?
Was notice of dismissal given within the trial period and in accordance with the agreement?
WHAT TO DO NOW
If you were dismissed on a trial
Find the signed agreement
Check the signature date against the first date on which you performed work for the employer.
Check prior work
Identify any earlier paid work, shifts, training or other employment for the same employer.
Read the notice clause
Compare what the agreement required with the notice actually given and when it was given.
Check other claims
Consider wages, holiday pay, discrimination, harassment and other rights separately from the dismissal challenge.
WARNING SIGNS
Things worth looking at closely.
- Agreement signed after work started
- Previous work for the same employer
- Clause exceeds 90 calendar days
- Notice given after the trial expired
- Employer assumes the trial period defeats unrelated discrimination or harassment claims
COMMON MISTAKES
Ways employees accidentally make the problem harder.
DON'T
Assuming the trial is valid because the agreement contains the words '90 days'.
DON'T
Overlooking work performed before the agreement was signed.
DON'T
Confusing a probationary period with a statutory trial period.
DON'T
Assuming a valid trial period means the employer can ignore every other minimum employment right.
POSSIBLE OUTCOMES
What a useful result can look like.
A challenge to the validity of the trial clause
An unjustified dismissal claim if the trial was invalid
Other personal grievance claims that remain available despite a valid trial
Payment or notice remedies where contractual obligations were not met
FAQ
90-day trial dismissal
Can all employers use trial periods?
Employers can use trial periods where the statutory requirements are met.
Must I sign before starting work?
Yes. A trial period must be agreed and included in the signed employment agreement before the employee starts work.
Can I be dismissed after the trial expires?
Notice relying on the trial must be given during the valid trial period, although the last day can fall later because of the notice period.
Can I raise any grievance during a valid trial?
Some dismissal protections are limited, but other claims such as discrimination or harassment can still be available depending on the facts.
FROM PROBLEM TO OUTCOME
Most disputes move through the same basic sequence.
- 1Preserve
Documents, dates, evidence and the deadline.
- 2Raise
Put the actual grievance or response clearly.
- 3Resolve
Negotiate or mediate where a sensible resolution is available.
- 4Escalate
Use the ERA or Court where the dispute cannot be resolved.
90-DAY TRIAL DISMISSAL
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