Dispute over work duties leads to termination during 90-day trial period
The Employment Relations Authority has awarded a tradie more than $27,000 after ruling that his dismissal during the 90-day period was unjustified.
Lyndon Barlow, who began working for CBT South Limited in February 2023, claimed that he was unfairly treated due to the nature of his assigned work and the manner in which his employment ended.
The worker, who had 15 years of experience in construction, took on a labourer role with CBT, believing that the position would offer a variety of tasks and possibly an apprenticeship after three months.
However, he was primarily assigned to roofing and cladding work, which he felt was not in line with the role he had expected. After raising concerns about the lack of variety, Barlow alleged that CBT did not address the issue.
The situation reached a tipping point in late May 2023, when Barlow engaged in a heated phone conversation with his employer, Aaron Schreurs, about concerns over the quality of work on a cladding project.
Following this conversation, Barlow was dismissed from his position, with CBT citing the 90-day trial period clause in his employment agreement.
In its ruling, the ERA ruled that Barlow's dismissal was unjustified, pointing out that CBT had failed to follow proper procedures in dismissing Barlow.
"Mr Barlow did not have a reasonable opportunity to respond to any concerns and have his response considered. These were not minor defects that did not cause unfairness. The dismissal was unjustified," the ERA said.
Although CBT had also invoked the 90-day trial period clause in Barlow's employment agreement, the ERA ruled that the provision could not be relied upon.
"CBT needed to ensure Mr Barlow had signed his employment agreement before he commenced his employment. The evidence did not enable the Authority to conclude that the employment agreement was executed before Mr Barlow commenced employment on 27 February 2023," the ERA said.
"The 90-day trial period cannot be relied on for this reason."
As a result, the ERA awarded Barlow compensation for three months of lost wages, totalling $13,572, as well as an additional $13,500 for the emotional and financial strain caused by the unjustified dismissal.
The ERA also acknowledge that Barlow's actions during the phone conversation in May 2023, including his refusal to follow instructions and critical remarks, contributed to the breakdown of the employment relationship.
As a result, the compensation and lost wages award was reduced by 10%. However, the ERA declined to impose a penalty on CBT for a breach of good faith, as it found the failures were not deliberate or intended to undermine the employment relationship.
