Two NZ employment law mistakes come up more than any others. The first: treating the 90-day trial period as 90 working days. It is 90 calendar days, and the difference is more than three weeks. The second: applying "otherwise working day" to a roster as though it means "a day the business is open." It means something more specific than that — and getting it wrong produces payroll errors that compound over time.
Here are the working day traps that consistently cause problems in NZ employment practice.
Trap 1: "90 Days" Does Not Mean 90 Working Days
Section 67A of the Employment Relations Act 2000 gives employers the right to include a trial period of up to 90 days in a new employee's agreement. Since 23 December 2023, all employers can use trial periods regardless of size. Ninety calendar days — not working days, not 13 weeks, not three months.
The practical difference is significant. Ninety working days is approximately 18 calendar weeks. Ninety calendar days is approximately 13 calendar weeks. An employer who mentally converts "90 days" to "about 3 months of working time" is operating with a trial period that expired five weeks ago.
How to calculate the expiry date
Count 90 calendar days from and including the first day of employment. The 90th day is the last day of the trial period. Weekends, public holidays, and annual leave all count. There is no pausing the clock.
Example: Employee starts Monday 2 February 2026.
- Day 1: 2 February
- Day 90: Saturday 2 May 2026
To dismiss under the trial period clause, notice of dismissal must be given before that 90-day period expires — on or before 2 May 2026. Notice given on 3 May is one day too late, and the employee has the same unjustified dismissal rights as any permanent employee.
Practical takeaway: Calculate the trial period expiry on the employee's first day and diarise it immediately. Do not recalculate from memory later — the risk of being off by a few days is too high.
Trap 1a: The notice must be given inside the trial period, not worked out inside it
The requirement is that notice of dismissal is given before the 90 days expire. The employee can then work out their notice period after the trial expires. What cannot happen is giving notice on day 91.
A trial period expiring on 2 May and a contractual two-week notice period means a last day of approximately 16 May. That is fine. Notice given on 4 May is not.
Trap 1b: The agreement must be signed before day one
For the trial period clause to be valid, the employment agreement — including the trial period clause — must be signed before the employee begins work. An agreement signed on the first day of work is too late. Courts have been consistent on this.
If the paperwork was not ready and the employee started anyway, the trial period clause is unenforceable. The employer's options narrow considerably at that point.
Trap 2: "Otherwise Working Day" Is About the Individual, Not the Business
The Holidays Act 2003 determines public holiday entitlements based on whether the holiday is an "otherwise working day" for the specific employee in question. The question is not "is the business open on Mondays?" It is: "would this employee have worked this particular day if it were not a public holiday?"
This is an individual assessment on each occasion. A Monday-to-Friday employee has every Monday as an otherwise working day. A worker rostered Tuesday-to-Saturday does not.
Why this matters for payroll
The otherwise-working-day answer determines everything downstream:
| Otherwise working day? | Employee doesn't work | Employee does work |
|---|---|---|
| Yes | Paid as normal — leave balance untouched | Time and a half + alternative holiday |
| No | No entitlement | Time and a half only — no alternative holiday |
The alternative holiday (sometimes called a day in lieu) is only generated when an employee works on a public holiday that is an otherwise working day for them. A Saturday shift worker who works Easter Saturday — not a public holiday — gets their normal weekend rate. A Monday shift worker who works Easter Monday — a public holiday — gets time and a half plus an alternative holiday if it would normally have been their working day.
Practical takeaway: For each public holiday, run the otherwise-working-day test for each affected employee, not for the business as a whole. With variable rosters, this requires checking what the employee was scheduled to work — not just their general pattern.
The low threshold for "otherwise working day"
Section 12(4) of the Holidays Act provides that if an employee would otherwise work any amount of time on a public holiday, that day must be treated as an otherwise working day. The threshold is low — even a short scheduled shift qualifies.
Where it is genuinely unclear whether an employee would have worked a particular day, section 12(2)–(3) requires both parties to consider factors including the employee's employment agreement, their work patterns, and whether the employer would have offered work on the day. If the parties cannot agree, a Labour Inspector may make a determination.
Trap 3: Public Holidays During Annual Leave Do Not Consume Leave
If a public holiday falls while an employee is on annual leave, that day is not deducted from their annual leave balance. They receive their public holiday entitlement for the day, and their leave balance is unaffected.
This applies to both national public holidays and regional anniversary days.
Where this goes wrong: Payroll systems that process annual leave automatically may apply a flat deduction for each calendar day of leave, including public holidays. The error is not always visible — the employee is on leave, so nobody notices the balance is one day lower than it should be. It is only when the employee returns and reconciles their leave that the discrepancy surfaces.
Practical takeaway: When an employee's annual leave spans ANZAC Day (27 April), Easter Monday (6 April), or any other public holiday, verify that your payroll system is crediting the holiday back. The same applies to regional anniversary days.
The same rule applies to bereavement leave and sick leave: a public holiday falling during either does not consume a leave day.
Trap 4: Notice Periods Are Calendar-Based — but NZ Has No Statutory Minimums
New Zealand does not set statutory minimum notice periods based on length of service. If the employment agreement specifies a notice period, that period applies. If it does not, the employer must give "fair and reasonable notice" — a standard that depends on the circumstances, including the employee's role, seniority, and length of service. Employment New Zealand guidance suggests two to four weeks is typically considered reasonable, but this is guidance, not a legislated minimum.
Most employment agreements do specify a notice period — four weeks is common for permanent roles.
The notice period runs in calendar days from the day after notice is given. Public holidays within a notice period do not pause the clock or extend the period.
The trap: Employers sometimes assume NZ has minimum statutory notice periods similar to the UK or Australia. It does not. The notice period is whatever the agreement says. If the agreement is silent, the "fair and reasonable" standard applies — which is fact-specific and can become a dispute in itself.
Practical takeaway: Check the employment agreement for the notice period before calculating any dates. Do not assume a default. If the agreement does not specify a notice period, get advice before proceeding — "fair and reasonable" is not a fixed number.
Trap 5: "Working Day" and "Business Day" Are Not Interchangeable — and Employment Agreements Often Do Not Define Either
For public holiday entitlements, the Holidays Act 2003 turns on whether a day is an "otherwise working day" for the specific employee — a concept distinct from a general calendar definition of "working day." Separately, the Legislation Act 2019 s13 provides a general statutory definition of "working day" that applies where other legislation uses the term without its own definition.
Employment agreements commonly use both "working day" and "business day" without defining either. In most contexts they mean the same thing. In an edge case — a notice period that falls around a regional anniversary day, or a dispute about a deadline — the ambiguity can become a real argument.
Practical takeaway: If an employment agreement uses either term in a notice provision or other time-sensitive clause, define it explicitly. A single sentence — "for the purposes of this agreement, a working day means any day that is not a Saturday, Sunday, public holiday, or the anniversary day of the region in which the employee's workplace is situated" — removes any ambiguity.
Trap 6: Grievance and Investigation Processes Do Not Pause Any Statutory Clock
The personal grievance limitation period under the Employment Relations Act runs from the date the alleged action occurred (or the employee became aware of it). For most grievances, this is 90 days. For sexual harassment grievances, the limitation period is 12 months (since 13 June 2023). An internal investigation, disciplinary process, or mediation does not pause either clock.
This catches employees who raise a concern internally, wait through a lengthy process, and then discover their window for filing a personal grievance has expired. It catches employers too — the outcome of an internal process does not reset the employee's grievance rights.
Practical takeaway: Both sides should track the grievance limitation period independently of any internal process — 90 days for most grievances, 12 months for sexual harassment. The internal process and the statutory right operate on separate timelines.
2026 Public Holidays: Employment Notes
Easter 2026 (3–6 April) Good Friday and Easter Monday are both national public holidays. For hospitality, retail, and healthcare — sectors with regular weekend and public holiday rosters — April is the highest-entitlement month of the year. Good Friday also carries trading restrictions.
ANZAC Day 2026 (observed Monday 27 April) For most Monday-to-Friday workers and for most working-day calculations, Monday 27 April 2026 is the key public-holiday date. But employees who would otherwise work on Saturday 25 April may have their public-holiday entitlement on the calendar date instead. An employee cannot claim two public holidays for the same mondayised holiday.
Christmas/Boxing Day 2026 (25 Dec, 28 Dec) Christmas Day (Friday 25 December) and Boxing Day observed (Monday 28 December) are public holidays. Saturday 27 December is not. For payroll runs covering the Christmas–New Year period, track which days are actual public holidays rather than treating the entire shutdown as a public holiday block.
Frequently Asked Questions
Q: Is the 90-day trial period 90 working days or 90 calendar days?
A: Calendar days. Every day counts: weekends, public holidays, annual leave days. Ninety working days would be closer to 18 calendar weeks — nearly five months. The trial period under s67A ERA is 90 calendar days from the first day of employment.
Q: What does "otherwise working day" mean?
A: It means a day on which the specific employee would otherwise have worked, had the public holiday not existed. It is an individual assessment based on the employee's actual working pattern — not a blanket yes/no for the whole business. Under the Holidays Act, if the employee would have worked any amount of time on the day, it is an otherwise working day.
Q: How is a notice period calculated in NZ?
A: NZ has no statutory minimum notice periods. The notice period is whatever the employment agreement specifies — four weeks is common. If the agreement is silent, "fair and reasonable notice" is required, which depends on the circumstances. The period runs in calendar days from the day after notice is given.
Q: Does a public holiday during annual leave extend my leave?
A: The public holiday does not consume an annual leave day, so yes — in effect, you get that day's leave balance credited back. Whether your leave period is extended in calendar terms depends on your agreement, but your annual leave balance is not reduced for the holiday.
Q: What's the difference between "working day" and "business day" in NZ employment contexts?
A: In most practical cases, nothing. Both typically mean Monday to Friday excluding public holidays. The distinction matters when a contract uses one term without defining it, and a dispute arises about a deadline falling on a regional anniversary day. The safest approach is to define the term explicitly in any agreement that uses it for deadlines or notice periods.
Q: How do I calculate when a 90-day trial period ends?
A: Count 90 calendar days from and including the first day of employment. For a start date of 2 February 2026, day 90 is 2 May 2026. Use the working day calculator's calendar-day counting mode as a quick cross-check — select "add 89 calendar days" from the start date (since the start date is day 1) and the result is the last day of the trial period.
Q: Can a part-time employee have an otherwise working day on a public holiday?
A: Yes. If a part-time employee regularly works on Mondays, Monday public holidays are otherwise working days for them. Their entitlements are the same as a full-time employee for that day, with pay proportional to their regular daily rate.
Sources & Further Reading
- Employment Relations Act 2000 — s67A (trial periods)
- Holidays Act 2003
- Public Holidays — Employment New Zealand (MBIE)
- Trial and Probationary Periods — Employment New Zealand
- Giving Notice — Employment New Zealand
- Legislation Act 2019 — s13
This guide is for general information only and does not constitute legal advice. Employment situations are fact-specific — seek advice from a qualified NZ employment lawyer for specific cases, or contact Employment New Zealand.