Can Cafes Use 90 Day Trial Periods?

Maya runs a busy cafe in Wellington. Summer is coming, her weekend roster is stretched, and she's found a barista who seems great after a short interview and coffee test.

She wants to hire quickly, but she's also wondering: can she put a 90 day trial period in the employment agreement, and will it actually protect the cafe if things don't work out?

If you're hiring baristas, waitstaff, kitchen hands or duty managers, this is a very normal question. Hospitality hiring can move fast, but trial period clauses only work if you set them up properly before the person starts work.

Can Cafes Legally Use A 90 Day Trial Period?

Yes, New Zealand cafes can use 90 day trial periods if the legal requirements are met.

Under the Employment Relations Act 2000, a trial period can be used for a new employee for a period of up to 90 calendar days. Since 23 December 2023, this option has been available to employers of all sizes, not just smaller employers.

For a trial period clause to be valid, you need to make sure:

• The employee hasn't previously been employed by your business.
• The employee isn't employed on an Accredited Employer Work Visa, as trial periods can't be used for workers employed on that visa.
• The trial period is in a written employment agreement.
• The employment agreement is signed before the employee starts work.
• The clause clearly says the employee is subject to a trial period.
• The trial period is for no more than 90 days.
• The trial period starts when the employee starts work.
• The agreement sets out the notice period that applies if you dismiss them during the trial period.

If you're hiring migrant workers, check the worker's visa conditions and any Immigration New Zealand Job Check requirements before including a 90 day trial period in the agreement.

If the trial period is valid and you dismiss the employee during that period by giving the correct notice, they generally can't bring a personal grievance for unjustified dismissal.

That protection is the main reason cafe owners use trial periods. But it doesn't mean you can ignore the rest of employment law. An employee may still be able to raise other claims, such as discrimination, harassment, unjustified disadvantage or a breach of minimum employment standards.

What Should A Trial Period Clause Say In A Cafe Employment Agreement?

A trial period clause should clearly set out when the trial starts, how long it lasts and what notice can be given during that time.

For a cafe employment agreement in NZ, your trial period wording should be specific enough that there's no confusion later. A vague line saying the employee is on trial is usually not enough.

Your clause should cover:

• Who it applies to: the named employee, as part of their individual employment agreement.
• Start date: the first day the employee starts work for you.
• Length: up to 90 calendar days, not 90 shifts.
• Notice: the notice period you can give during the trial period, such as one week, or another period that suits the role.
• Effect of dismissal: that if you dismiss the employee under a valid trial period, they can't bring a personal grievance for unjustified dismissal.
• Payment in lieu: if you want the option to pay notice instead of requiring the person to work it, the agreement should say so.

Hospitality roles often involve a mix of early starts, weekend shifts, public holidays and changing rosters. Your employment agreement shouldn't treat the trial period as the only key clause. It should also deal with:

• whether the role is permanent, part-time, fixed-term or casual;
• ordinary hours and expected days of work;
• how rosters are set and changed;
• meal and rest breaks;
• pay rates, including any allowances or penal rates you choose to offer;
• public holiday work under the Holidays Act 2003;
• confidentiality, employee privacy, customer data and social media expectations; and
• health and safety duties, especially around food handling, hot equipment and closing procedures.

Templates can be a useful starting point, but cafe employment documents work best when they match how you actually roster and manage your team.

When Does The 90 Day Trial Period Start For Casual Or Rostered Staff?

The 90 day trial period starts on the employee's first day of work, not each time you roster them on.

This matters a lot in hospitality, because casual and part-time staff may only work a few shifts in their first month. If someone works one Saturday shift, then comes back two weeks later, the trial period has still started from that first day.

Casual Cafe Staff

You can use a trial period for a genuine casual employee if they're new to your business and the agreement is signed before their first shift.

However, casual employment needs to be genuine. If you roster the person every Monday, Wednesday and Saturday on an ongoing basis, they may look more like a permanent part-time employee than a casual employee.

The label in the agreement isn't everything. What happens in practice matters too.

Part-Time And Full-Time Cafe Staff

For permanent part-time or full-time employees, the trial period also starts on the first day they work. The fact that they're working a roster doesn't change the 90 calendar day rule.

For example, if Maya's new barista starts on 1 February, a 90 day trial period runs from that start date. Maya shouldn't count only the days the barista actually works behind the coffee machine.

Fixed-Term Hospitality Roles

You can sometimes use a trial period in a fixed-term agreement, but you also need a genuine reason for the fixed term under the Employment Relations Act 2000.

For example, covering a staff member on parental leave or hiring extra staff for a specific festival season may be a genuine fixed-term reason. You need to state the reason and how the employment will end in the agreement.

A trial period clause doesn't fix a weak fixed-term arrangement. If you're using fixed-term staff regularly, it's worth checking the structure carefully.

Do Trial Shifts Affect The Trial Period?

Yes, trial shifts can affect the trial period if the person starts doing real work before the employment agreement is signed.

This is one of the biggest traps for cafes. You might invite someone in for a two hour coffee test or a paid trial shift to see how they handle the machine, customers and pace. That can be sensible from a hiring point of view, but it can create legal risk if the paperwork comes later.

If the person has already started work before signing the employment agreement, you may lose the ability to rely on a 90 day trial period.

To reduce that risk:

• give the person the proposed employment agreement before they start;
• tell them they can get independent advice on it;
• give them a reasonable chance to ask questions;
• get the agreement signed before any paid training, trial shift or rostered shift; and
• keep a copy of the signed agreement in your employment records.

A short pre-employment skills assessment can be different from a work shift, but the line can get blurry in a cafe. If the person is serving customers, making coffee for sale or helping with normal operations, treat it as work and have the employment agreement sorted first.

What Is The Difference Between A Trial Period And A Probation Period?

A trial period can limit an employee's ability to bring an unjustified dismissal claim, while a probation period generally does not.

This is the key difference between a probation period and a trial period in NZ.

A probation period is usually used to set expectations and review performance over an initial period. It can be useful, especially for promotions, transfers or employees who have worked for you before. But if you dismiss someone during or at the end of probation, you still need to follow a fair process.

That usually means:

• setting clear expectations for the role;
• telling the employee about concerns early;
• giving support, training and feedback;
• giving the employee a fair chance to respond; and
• making a genuine decision after considering their response.

A trial period is different. If it's valid, and you give notice correctly during the trial period, the employee generally can't bring a personal grievance for unjustified dismissal.

You might use:

• A trial period for a brand new barista, waiter or kitchen hand who has never worked for you before.
• A probation period for an existing staff member moving into a duty manager role.
• Neither if the arrangement is very short, low risk or you already know the person well, although you should still have a proper employment agreement.

Don't use both clauses carelessly. If your agreement has a trial period and a probation period running at the same time, the wording needs to be clear so the clauses don't conflict.

How Do You Dismiss Someone During A Trial Period?

You can dismiss someone during a valid trial period by giving the notice required by the employment agreement before the trial period ends.

The safest approach is to use clear termination documents and give notice in writing. Even if the agreement allows verbal notice, written notice gives you a clear record of the date, timing and final day of employment.

Your process should usually look like this:

1. Check the signed employment agreement and confirm the trial period clause is valid.
2. Check the employee's start date and calculate the 90 calendar day deadline.
3. Check the notice period in the agreement.
4. Decide whether the employee will work out the notice period or be paid in lieu, if the agreement allows that.
5. Give written notice before the trial period ends.
6. Prepare final pay, including wages and any holiday pay owed under the Holidays Act 2003.

You don't usually need to give detailed reasons for dismissal under a valid trial period. However, many cafe owners still choose to give a simple, respectful explanation, especially in a small team where everyone knows each other.

Keep it calm and professional. For example, you might say the role hasn't worked out as expected and you're ending employment under the trial period clause in the agreement.

Be careful not to dismiss someone for an unlawful reason. A trial period doesn't protect you if the real reason is, for example, pregnancy, union involvement, making a health and safety complaint, raising concerns about pay, or another prohibited ground.

Can You Avoid Trial Period Rules By Calling Someone A Contractor?

No, you shouldn't call ordinary cafe staff contractors just to avoid employment obligations.

Most baristas, waitstaff, kitchen hands and shift supervisors are employees, especially where you control their roster, require them to wear your uniform, train them in your systems and expect them to work personally in your cafe.

A contractor agreement is more likely to suit genuinely independent businesses, such as a marketing consultant, equipment technician or event photographer who provides services to your cafe on their own terms.

Since 21 February 2026, the Employment Relations Act has included a contractor gateway test for some independent contractor arrangements. If all of the gateway criteria are met, the worker is treated as a specified contractor. If the criteria aren't all met, the usual common law test still applies.

For most day-to-day cafe roles, though, the practical answer stays the same: if they work like an employee, treat them like an employee. That means a compliant employment agreement, correct pay, holiday entitlements, records and a valid trial period clause if you want one.

Common Mistakes To Avoid With Hospitality Trial Clauses

Most trial period problems come from timing, wording or using the wrong employment type.

Watch out for these common issues:

• Signing after the first shift: if the employee starts work first, your trial period may not be valid.
• Using 90 shifts instead of 90 days: the limit is 90 calendar days from the start of employment.
• Using trial periods for AEWV workers: Immigration New Zealand doesn't allow trial periods for workers employed on an Accredited Employer Work Visa.
• Re-hiring a former employee on a trial period: trial periods are for employees who haven't previously been employed by you.
• Forgetting casual rules: if the person has regular ongoing shifts, they may not be genuinely casual.
• Leaving out notice: your agreement should clearly state the notice period during the trial.
• Relying on a probation clause instead: probation doesn't give the same protection as a valid trial period.
• Ignoring final pay: you still need to pay all wages and holiday pay owed.
• Using a contractor label for staff: the reality of the relationship matters more than the wording.

Good employment documents also help you manage the rest of the relationship. For cafes, that usually means clear clauses around rosters, availability, lateness, uniform, food safety, cash handling, tips, social media and confidentiality.

When your agreement reflects how the cafe actually runs, it's much easier to have a fair and practical conversation if something goes wrong.

Key Takeaways

• NZ cafes can use 90 day trial periods, but only if the employee is new and the clause is in a signed employment agreement before work starts.
• Trial periods can't be used for workers employed on an Accredited Employer Work Visa, so cafes hiring migrant workers should check visa and Job Check requirements.
• The trial period runs for calendar days from the first day of work, not the number of shifts worked.
• A probation period isn't the same as a trial period and doesn't remove the need for a fair dismissal process.
• You still need to meet minimum employment standards, including correct pay, holiday pay and proper employment records.
• Calling cafe staff contractors usually won't work if they're rostered, managed and working like employees.

If you'd like help with cafe employment agreements, trial period clauses, migrant worker hiring and contractor arrangements, you can reach us at 0800 002 184 or team@sprintlaw.co.nz for a free, no-obligations chat.