The Employment Relations Authority has upheld a claim for
unjustified dismissal under a 90 day trial period. The trial period provided that if termination
was to be given under the trial period that the termination could be given
immediately. The ERA held that this
termination without any period of notice was invalid because a termination
without notice cannot be a notice period.
A notice period is required to notify the employee when in the future the
dismissal will take effect.
This was not a situation where there was no notice period
specified in the termination clause. In
that situation, notice would be reasonable notice and that would be interpreted
by the Court, usually to equal any other notice periods in the contract or
based on the pay period. However, in
this case the clause did provide a notice period, but one which had stated was
of immediate effect. As this was invalid
there was no notice period and therefore the termination was itself invalid.
As the notice given was invalid the employee was
unjustifiably dismissed and was awarded $7,600 in lost wages and $15,000
compensation for hurt and humiliation.
It appears that the employer was trying to be tough when
it drafted its employment agreements to provide for no notice period under a 90
day trial and this has come back to bite them.
If they had just specified a shorter notice period, then that would most
likely have been upheld by the ERA and the termination would have been
justified.
Alan
Knowsley
Employment
Lawyer Wellington
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