An employer recently found out the hard way that taking shortcuts, and not allowing their employee to properly exercise their rights, can have disastrous consequences and result in a personal grievance against them.

The employee was provided their employment agreement but was not advised that they were entitled to take independent advice on the agreement before signing.  In addition they were not provided time to arrange advice even if they had known about it.  They signed their agreement only a few minutes after first seeing it.

The ERA held that there is an obligation to advise of the right to independent advice and to provide the opportunity to get advice.  Note that these obligations apply even if the employee wants to sign immediately.  The opportunity (more than one day is needed) still has to be given.

The employer in this case dismissed the employee under the 90-day clause (whereby an employee cannot bring a personal grievance).  The ERA held that the employer had engaged in unfair bargaining by not giving the opportunity for independent advice and therefore the 90-day trial period could be removed from the contract.

Once this clause was removed the employer had no right to terminate without a proper process.  No process had been followed, therefore the dismissal could be held to be an unjustified dismissal.

The employer became liable for lost wages, damages for hurt and humiliation, plus legal costs (all yet to be fixed, but likely to be substantial).

If you need help getting your employee engagement processes correct or implementing a 90- day trial period termination, call me on (04) 473 6850.