The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal after a worker was fired for poor performance.

The employee was not given a written employment contract when he started work and asked on several occasions to be provided with a written contract. The employer’s response was to dismiss the employee.

The employer tried to justify the dismissal on various grounds.  The first was that the employee was subject to a trial period and that he was dismissed for poor performance during the trial period.  As there was no written employment agreement there were no terms of the trial period or length.  The ERA held that it could not be a 90 day trial period as they are only valid if they are in writing and as there was no employment agreement there was no 90 day trial period.  The employer also admitted that the employee had passed his trial period satisfactorily.  Therefore there could be no dismissal under a less formal trial period with a performance review carried out.

The ERA then went on to consider whether there had been an ordinary performance process carried which would justify a dismissal.  It held that there was no such process carried out as the employer did not raise any performance issues with the employee, as his performance had been satisfactory.  It also had not raised with him any absences, so he had no opportunity to respond to its concerns over his absences.  In addition the absences were each supported by medical certificates, therefore there was no basis on which to claim poor performance in relation to those absences.

The dismissal was therefore held to be unjustified and, as the employee had suffered significant emotional harm from the dismissal, he was awarded $12,000 compensation for that harm plus over $8,300 lost wages for the 11 weeks it took him to find alternative work.

90 day trial periods must be in writing and follow a particular form of words.  Any performance concerns must be raised with the employee and they must be given an opportunity to respond before any decisions are taken and a failure to do so will mean that the employer has not been acting reasonably and following a fair process.

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Alan Knowsley