The Employment Relations Authority has upheld a personal
grievance claim for unjustified dismissal after an employee was dismissed under
a 90 day trial period clause.
The ERA held that although there was a 90 day trial clause
in the employment agreement, that employment agreement was never signed by the
employee. This means the employer cannot
rely on the 90 day trial clause and must satisfy the ERA that the process followed
for termination was fair and reasonable in the circumstances.
The ERA held that the employer failed to show that the
process followed was correct because it did not properly raise performance
concerns with the employee. It did not
give the employee any time to prepare a response. It did not make the consequences of failing
to reach the required standards clear.
It did not provide the employee with any assistance to improve his
performance and there was no review of the performance made by the employer. In actual terms the employer gave the
employee no opportunity to comment on the concerns before the dismissal was
made.
The employee managed to find work quite quickly so it was
awarded $1,800 lost wages but was also awarded $10,000 compensation for the
unjustified dismissal.
To rely on a 90 day trial period clause, both the employer
and the employee must sign the agreement before the employee commences
work. If that has not been done, the
employee has already been employed by the employer prior to the clause being
signed and such a clause is invalid.
Alan
Knowsley
Employment
Lawyer Wellington
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