Dismissed on a 90-day trial? Check the clause before giving up.
A valid trial period limits ordinary dismissal claims, but trial clauses are technical. The agreement, signing date, first day and notice all matter.
A trial only works if the legal requirements are met
A 90-day trial is not the same as probation. The trial generally needs to be agreed in writing before the employee starts work, the employee must not have worked for that employer before, and notice must be given within the trial period in accordance with the agreement.
- Find the signed employment agreement and the date/time it was signed.
- Confirm the actual first day and time you started work.
- Keep the termination notice and note exactly when and how it was given.
- Do not assume the words ‘90-day trial’ mean the dismissal is immune from challenge.
What the employer still has to justify
The trial clause was not agreed and signed before the employee started work.
The clause does not meet the statutory requirements for a valid trial period.
The employee was not legally eligible to be employed on a trial period in the circumstances.
Notice of termination was defective or given outside the valid trial period.
The employer assumes the trial removes every other employment right.
What actually matters here
01The agreement should be in place before work starts
A trial period generally needs to be agreed in the employment agreement before the employee begins work. If the employee starts first and signs later, the employer may not be able to rely on the trial. Offer emails, signing dates, induction records and the first shift can therefore matter.
02The employee must not have worked for the employer before
A statutory trial period is generally only available where the employee has not previously worked for that employer. Even a short period of earlier employment can be significant and should be checked.
03Notice still matters
The employer needs to give notice within the trial period. The last day can fall after the trial ends if valid notice was given in time, but the notice requirements in the agreement still matter. Other grievance grounds and wage claims can remain available even where the trial itself is valid.
What a useful result can look like
A properly established and properly used trial period can significantly limit dismissal rights. The documents and timing have to be checked before assuming there is a claim.
A dismissal claim where the trial was invalid or the dismissal did not comply with it.
Other personal grievance claims that remain available even where a trial is valid.
Settlement where technical defects create material risk for the employer.