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