Employee on 90-day trial period wins unjustified dismissal claim...

The Employment Relations Authority has ordered an employer to pay $21,700 after the unjustified dismissal of an employee.

The employee was employed under an employment agreement that contained a 90-day trial clause. This clause stated that either the employee or the employer could terminate the employment within 90 days of its commencement by giving the other party one week’s notice.

After just over two weeks of employment the employer dismissed the employee by stating that he was lazy and was no longer welcome at the workplace. The notice period of one week was not given.

After the dismissal the employee raised a personal grievance claim of unjustified dismissal in the Authority.

The employer claimed that at the function the employee conducted tasks outside of his area of training, didn’t finish the tasks he was meant to be doing, and finished early so that he could have a drink. The 90-day trial clause was also relied upon by the employer.

The Authority decided that whilst the 90-day trial clause was valid, the employer had not given the employee the required one week’s notice under the clause. The employer could have dismissed the employee without conducting any investigation or raising any concerns with the employee if they had given the week’s notice.

However, to dismiss without notice the employer had to show serious misconduct.  In this case as the employee was dismissed without any allegations being raised with him and he was not given any opportunity to respond to any allegations, there could be no finding of serious misconduct.

Employers dismissing under a 90-day trial period need to either pay the notice period or go through the full disciplinary process if they wish to dismiss without notice for serious misconduct. To do that process in a fair way would normally take over a week, so it would have been better here to dismiss on notice under the 90-day trial period clause and pay the notice period.

The employer was ordered to pay $6,700 as compensation for lost wages, and $15,000 as compensation for the hurt and humiliation caused by the dismissal.

It appears that this was yet another expensive and time-consuming situation which could have been avoided had the employer got their process right.

If there is confusion around the correct dismissal process, it pays to seek advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley & Matthew Binnie