A recent Employment Relations Authority decision confirms that arriving at the workplace does not necessarily mean an employee has started work.
However, the employer’s success depended on closely contested evidence. The safer approach remains simple: obtain the signed employment agreement before the employee’s first day.
What happened?
Under thIn Ward v Property Force Limited [2026] NZERA 707, Lisa Ward was employed as an office administrator subject to a 90-day trial period.
She arrived at work at approximately 8.00 am on her first day. The employer arrived later, and the employment agreement was provided and signed that morning.
After five working days, Property Force Limited decided the arrangement was not working and ended the employment. The agreement required 14 days’ notice. The employer subsequently confirmed in writing that Lisa Ward could work during that notice period, but she did not want to return.
Lisa Ward challenged the dismissal. She argued that:
- the trial period was invalid because she signed the agreement after arriving at work; and
- the employer had not given the required 14 days’ notice.
Had the employee already started work?
A 90-day trial provision must be agreed in writing before the employee starts employment. The courts have traditionally applied this requirement strictly.
In this case, the Authority accepted that Lisa Ward had arrived at the workplace before signing the agreement. However, it found that she had probably not performed any work.
She was effectively waiting for the employer to arrive, provide the agreement and begin her induction. The trial provision was therefore signed before she commenced her work duties and remained valid.
This was a narrow, fact-specific finding. Had she answered a business call, accessed the employer’s systems or carried out another work task before signing, the outcome could have been different.
Was the correct notice given?
The initial conversation about ending the employment was unclear. The employee believed she had been dismissed immediately, while the employer considered that both parties understood the arrangement had not worked out.
Before the next working day, the employer clarified the position in writing and gave 14 days’ notice.
The agreement said the employer might pay the employee not to work during the notice period. It did not give the employee an automatic right to payment in lieu of notice.
The Authority found that the employer was entitled to require the employee to work during the notice period. Her decision not to return did not invalidate the notice or the trial period.
The result
The Authority found that:
- the employee had not started work before signing the agreement;
- the 90-day trial provision was valid;
- the employer gave the required notice; and
- the unjustified dismissal grievance could not proceed.
Costs were reserved.
What should employers learn from this case?
Although the employer succeeded, it came close to losing the protection of the trial period.
Employers should:
- provide the employment agreement well before the start date;
- give the employee a genuine opportunity to obtain advice;
- obtain the signed agreement before the employee attends work;
- confirm that the employee has not previously worked for the employer;
- check the exact notice required by the agreement;
- give notice before the trial period expires; and
- communicate the termination clearly and in writing.
Avoid vague statements such as “things are not working out.” The termination letter should expressly rely on the trial-period clause, give the required notice, identify the final employment date and explain whether the employee will work, receive payment in lieu or be placed on garden leave.
A useful decision, but not a safe process
This case does not give employers permission to hand over an employment agreement after the employee arrives for their first shift.
Property Force Limited succeeded because the Authority accepted that no work had been performed before the agreement was signed. That conclusion required detailed evidence about what occurred during the employee’s first morning.
Employers should avoid that argument altogether. Have the agreement signed and returned before the first day, then comply precisely with its notice requirements if the trial period is used.
Need advice before ending employment under a trial period?
Help?
A technical mistake can invalidate a trial provision and leave an employer defending an unjustified dismissal claim without having followed a normal performance or disciplinary process.
I.R. Thompson Associates can review the employment agreement, commencement records and proposed termination letter before notice is issued.