Employer's generosity leads to challenge

A recent Employment Relations Authority decision enforced the provisions of a 90 day trial period and the employer’s actions in dismissing the employee under the clause.

The employer told the employee it was considering dismissing under the clause (this step is not required) and gave the employee an opportunity to comment (also not a required step) before advising that they were dismissed under the clause (a required step).

The employee challenged the decision partly on the ground that being given an opportunity to comment on the proposed dismissal (when such an opportunity is not required) made the decision to dismiss not one relying on the trial provision.

The ERA rejected that challenge and held that the employer could still give an employee an opportunity to be heard (even though not required to do so under a 90 day trial clause) and doing so did not mean the dismissal was not still valid.  A win for common sense as an employer should not be disadvantaged for being more generous than the law requires.

Alan Knowsley

Employment Lawyer Wellington