Why firing a 90-day trial worker must be done by the book

Monday, 11 May 2026

Employment lawyer Shelley Eden says the case serves as yet another warning to employers to always terminate a contract strictly in accordance with the trial period.

Failing to fire a worker strictly in accordance with a 90-day trial period has cost an accounting firm $7000.

Courtney Jansen was employed by BDS Chartered Accountants Limited as an administrator on a contract that contained a 90-day trial period.

Jansen told the Employment Relations Authority (ERA) that BDS, which employed about 15 people, failed to provide adequate training and support in her role as an administrator and did not provide a healthy and safe work environment.

While those claims were rejected, her claim for constructive dismissal stood up because she was offered the option of resigning rather than having her employment terminated at the end of the trial period.

The case highlighted a trap, albeit well intentioned, that employers could fall into because offering the option of resigning was not really an option when dismissal had already been decided.

ERA member Simon Greening said BDS’ intention was to offer a compassionate alternative to dismissal in order to support Jansen’s ability to find new work. But the firm said it had not intended to waive its rights under the trial provision.

If an employer terminated an employment agreement that included a trial provision before the end of the trial period, then the employee could not raise a personal grievance for unjustified dismissal.

Employment lawyer Shelley Eden said the case served as yet another warning to employers to always terminate a contract strictly in accordance with the trial period.

But what employers could take from the decision was the dismissal of a claim of inappropriate behaviour at work. “But because Jansen had not raised these issues or concerns with the employer at the time they happened, they did not get the chance to try and remedy it or fix it, and so her claim was not substantiated on those points,” Eden said.

Another interesting element to the case was that when it came to damages, the authority determined BDS handled the trial period wrongly by not giving Jansen notice in writing.

But although BDS made the error, the authority said BDS could have followed a proper process immediately after that, and dismissed her under the trial period properly, negating any claims for losses.

BDS was ordered to pay compensation of $7000.