The Employment Relations Authority has recently upheld an employee’s personal grievance claim of unjustified dismissal, despite her employer’s argument that she was on a trial period.

The employee responded to a job ad on Trade Me and the employer asked her to come in for an interview and training day. During the first day, the employer and employee ended up doing normal job tasks for a shift over seven hours.

The employer offered the employee an employment agreement the following day, which included a 90-day trial period. The employee signed the agreement and began working for the employer.

The employee’s hours were soon reduced due to the employer’s concerns about her. These concerns included the employee taking money from the tip jar, accounts not balancing, and potential drug use. These issues, apart from the tip jar, were not mentioned to the employee.

The employee was later informed through the work group chat that the employer no longer needed her to work. She was asked not to return and she did not do so. The employee later raised a personal grievance with the Authority.

The Authority had to determine whether the employee was working on a valid trial period. If she was, the trial period would prevent her from bringing any personal grievance claims to the Authority.

The employee’s agreement stated that her “first day of work” was the day the employee first came into the workplace. However, the employee did not receive or sign the agreement until the following day.

The Authority decided that the employee had worked a complete work shift that first day, including undertaking ordinary job activities expected of employees, and had been paid for the full day. She therefore had already been employed by the employer before she signed the agreement.

The law provides that a trial period does not apply to any person who has been employed by the employer previously. The Authority stated that strict compliance with the law is required for trial periods. Therefore it decided that the trial period was invalid and the employee could raise a personal grievance.

The Authority then had to determine whether the employee had been unjustifiably dismissed. This requires a consideration of what a reasonable employer could have done in the circumstances.

In this case the Authority decided that a reasonable employer could not have dismissed the employee over text, and in a public manner such as a group chat. Further, the employer made little to no attempts to address their concerns with the employee.

The Authority also decided that there was no evidential basis for the employer’s concern that it was the employee’s fault for the accounts failing to balance. The employer also could not rely on “gossip” as to the employee taking drugs, given that she had shown no erratic behaviour which could link to drug addiction. These concerns were unreasonable without further evidence.

Given that no fair process was undertaken by the employer before dismissal, the Authority decided that the employee had been unjustifiably dismissed. The Authority ordered the employer to pay over $6,500 in lost wages, $11,250 as compensation, and $3,000 in costs.

It is important to note that a 25% deduction was made to the wages owed to the employee. This was deducted due to the employee’s conduct in taking money from the employer’s tip jar without notice. An employee and employer duty of faith goes both ways, and this is something the Authority will consider when making their decision.

It is important to be aware of your obligations as an employer. If you are confused about the process for dismissing an employee, it pays to seek advice from a professional with experience in the area.


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Alan Knowsley and Hunter Flanagan-Connors