An
employee working as a client services representative has been dismissed in
reliance on a 90 day trial period. The employee worked in an open plan office
and was routinely seen surfing the internet, taking personal phone calls,
chatting to colleagues, and taking lengthy breaks away from her desk. The
employer dismissed the employee after he found her asleep in the staff room.
The employer was also concerned that the employee was making inappropriate
advances on another woman in the office.
The Employment Relations
Authority upheld the employee’s personal grievance claim for unjustified
dismissal.
The
ERA held that the 90 day trial period clause was ineffective as it was
ambiguous due to poor drafting. The ERA noted that when there is an ambiguity
in a contract that excludes or limits a party’s rights, the ambiguity should be
read in favour of the party whose rights are restricted. Consequently, the
employee was not excluded from bringing a personal grievance claim.
The ERA held that the employer failed to act as
a fair and reasonable employer could in all of the circumstances by failing to
carry out an investigation into the employee’s apparent lack of focus at work
and her behaviour in relation to her colleague. The employer also failed to ask,
and then consider, the employee’s explanation for her conduct before deciding to
dismiss her.
The ERA awarded the employee
over $5,200 for lost wages plus $8,000 compensation for humiliation, loss of
dignity, and injury to feelings.
Alan
Knowsley
Employment Lawyer Wellington
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