The Employment Relations Authority has ordered an employer to pay $22,000 after deciding that the employer firing the employee because of her stutter was an unjustified dismissal. This was despite it being done under a 90 day trial period clause and within time.

The employer hired the employee after two interviews, in which time there was no indication that they were unhappy with the employee’s communication skills. Soon after the commencement of employment, the employer became unhappy with the employee’s ability to communicate with clients over the phone.

The employer organised a meeting with the employee, but did not state what the meeting was about. The employee assumed it was an informal catch up. During the meeting, the employer raised the issue of the difficulty the employee was having with communication over the phone, at which point the employee informed the employer of her stutter. The tone of the meeting changed at this point, and the employer began to offer alternative employment options for lower pay. The employee was then dismissed by the employer, who stated that she was unfit for the role.

The employee brought a personal grievance claim of discrimination to the Authority, stating that she was fired because of her stutter, and not because of poor job performance.

The employer argued that they were entitled to dismiss the employee, as the employment agreement contained a 90-day trial period clause, under which the employee would have 90  days to dismiss the employee if they so wished.

The Authority had to decide whether the employee was dismissed because of her stutter, or if there were genuine issues with her job performance that warranted a dismissal. It was decided that the employer had dismissed the employee because of her stutter, as there was no indication prior to being informed of the stutter, that the employer had any intention of dismissal.

Whilst subject to a 90 day trial clause, an employee can still bring a personal grievance claim to the Authority if it falls within one of the exceptions listed in the Act. In this case the personal grievance claim succeeded, as the dismissal was found to have occurred as a result of discrimination. This rendered the 90 day trial clause ineffective, as a personal grievance claim for discrimination is still permitted if an employee is employed under a trial clause

The Authority decided that the employer had discriminated against the employee, and ordered them to pay $17,500 as compensation for the hurt and humiliation caused by the dismissal, and $4,800 as compensation for unpaid wages.

If there is confusion around employer obligations in an employment relationship, it is wise to seek advice from a professional with experience in the area.


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