90 day trial clause held invalid…

An employee working as a client services representative has been dismissed in reliance on a 90 day trial period. The employee worked in an open plan office and was routinely seen surfing the internet, taking personal phone calls, chatting to colleagues, and taking lengthy breaks away from her desk. The employer dismissed the employee after he found her asleep in the staff room. The employer was also concerned that the employee was making inappropriate advances on another woman in the office.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified dismissal.

The ERA held that the 90 day trial period clause was ineffective as it was ambiguous due to poor drafting. The ERA noted that when there is an ambiguity in a contract that excludes or limits a party’s rights, the ambiguity should be read in favour of the party whose rights are restricted. Consequently, the employee was not excluded from bringing a personal grievance claim.

The ERA held that the employer failed to act as a fair and reasonable employer could in all of the circumstances by failing to carry out an investigation into the employee’s apparent lack of focus at work and her behaviour in relation to her colleague. The employer also failed to ask, and then consider, the employee’s explanation for her conduct before deciding to dismiss her.

The ERA awarded the employee over $5,200 for lost wages plus $8,000 compensation for humiliation, loss of dignity, and injury to feelings.