An employee working as a mechanic was
dismissed under a 90 day trial period clause after he returned to work after 3
days of unexplained absence. The employee had tried to contact the employer on
multiple occasions during this time to notify him that he was ill. On his
return to work the employee provided the employer with a medical certificate.
The Employment Relations Authority
upheld the employee’s personal grievance claim for unjustified dismissal.
The ERA held that the trial period
clause in the employee’s individual employment agreement failed to meet the
requirements for a valid trial period. The employee had started working before
signing his employment agreement and was therefore not considered a new
employee.
The ERA held that a fair and reasonable
employer could not have justifiably dismissed the employee in these
circumstances without properly investigating his concerns about the employee’s absence
from work and the employee’s performance. The employer also failed to put his
concerns to the employee, and failed to provide him with an opportunity to
improve.
The ERA ordered the employer to pay the
employee $2,000 for lost wages and over $3,100 for wage arrears and holiday pay
plus $6,000 in compensation for humiliation, loss of dignity and injury to
feelings. The ERA deducted over $260 from the employee’s award for debts due to
the employer.
Alan Knowsley
Employment Lawyer Wellington
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