An
employee was given two weeks’ notice of his employer’s decision to dismiss him
under a trial period provision in his employment agreement. The employee
claimed that he was entitled to three months’ notice upon the termination of
his employment and was therefore unjustifiably disadvantaged by his employer.
The
Employment Relations Authority rejected the employee’s personal grievance claim
for unjustified disadvantage.
The
ERA found that the employee’s employment agreement was silent as to the notice
period required for termination under a trial period. The employer had
therefore relied upon the Misconduct/Substandard Work performance notice period
of 2 weeks.
When
an employment agreement does not expressly provide for a notice period, a
reasonable period of notice is inferred.
The
ERA noted that there is no mechanical yardstick as to what constitutes
reasonable notice. When deciding what is a reasonable period of notice, the ERA
will look at the following factors:
The
nature of the employment;
The
character of the employment relationship;
The
seniority of the position;
The
length of service of the employee;
The
age of the employee;
The
availability of other employment for a person of the employee's experience and
qualifications or training; and
The
individual circumstances of the particular employer and employee.
The
ERA held that the 2 week notice period was reasonable in these circumstances as
the employee was aware that his employment was uncertain and was not guaranteed
as extending beyond the statutory 90 day trial period.
The
preferable course is to include a specific notice period in the agreement so
there is no argument over the length of notice that has to be given.
Alan Knowsley
Employment Lawyer Wellington
