The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal after a courier driver was dismissed one day after receiving a performance warning.

The ERA found that although there was a 90 day trial clause in the employment agreement, this was not valid because the agreement was not signed by the parties. Any 90 day trial clause must be in writing and in a signed employment agreement before employment commences.

The employee had only worked for a short time when she was given a warning about her performance. No details were given to her of what she needed to improve. No process was followed to advise her of the employer’s concerns and she was not given an opportunity to comment on the issues or the warning before it was given.

The next day she was telephoned by her employer who told her things were not working out and she should return her van, keys and uniform. This was held to be a dismissal. There was no proper process and no opportunity for her to respond to the dismissal. There had been no opportunity for her to improve her performance between the warning and her dismissal.

The ERA awarded the employee 3 months wages ($13,000) and ordered $14,000 compensation be paid to her for the hurt and humiliation suffered.

If the employer had concerns it should have told the employee what they were and given her a reasonable opportunity to respond to them. It should also have given her a chance to improve. If she did not improve it should have put its concerns to her and given her an opportunity to respond before deciding on whether she had improved or not. It should also have given her an opportunity to comment on any proposed outcome (eg dismissal) before reaching any conclusion. The failure to do so has cost the employer $27,000 in this case.

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