When does a trial period become invalid?
The Employment Relations Authority (ERA) recently dealt with a case where a worker challenged his employer's decisions regarding his role and dismissal.
The worker argued he was misled about the nature of his work and unjustifiably dismissed during a trial period. He also claimed his employer failed to address his concerns about being assigned tasks that differed from what was initially discussed.
The case highlighted several crucial employment law issues, including the proper implementation of trial periods, workplace communication, and the importance of clear job descriptions.
After 15 years in construction, primarily as a self-employed roofer, the worker joined the building company in early 2023. His written employment agreement included a 90-day trial provision and described his position as both carpenter/labourer and labourer, though both parties later agreed the role was that of a labourer.
The worker said he accepted the position believing he would perform various construction duties and receive an apprenticeship after three months.
However, the employer's director maintained he already had two apprentices and had only mentioned an apprenticeship as a future possibility.
The employment agreement broadly defined the role's purpose as "to undertake labouring work, and general building work as required." This general description later became a source of disagreement between the parties.
A critical issue emerged regarding when the employment agreement was signed. While text messages showed discussions about the contract delivery, the ERA couldn't definitively establish the signing date. The agreement showed two different dates - the worker's signature dated 6 March 2023 and the employer's dated 16 March 2023.
The ERA emphasised: "It is well established that in ordinary breach of contract cases a plaintiff is under no duty to mitigate their losses. No positive duty emerges from the wording of the Act." This principle became relevant when examining the trial period's validity.
Since the employer couldn't prove the agreement was signed before work commenced, the trial period became invalid under previous court decisions, allowing the worker to pursue a personal grievance claim.
The relationship ended following a dispute about cladding work in May 2023. The worker raised concerns about potential timber rot in two buildings, while the employer's director and another worker confirmed there were no structural issues.
The termination came via a message stating: "Your employment is terminated under the 90 day trial period as per the clause in your employment agreement. You are not required to work the notice period."
The ERA noted: "[The employer] needed to ensure [the worker] 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 [the worker] commenced employment."
The ERA's decision emphasised proper workplace practices: "Employment Court judgments have made it clear that a 25 percent reduction is of 'particular significance.' I do not conclude there was blameworthy conduct of particular significance but the type of conduct for which a reduction of 10% is appropriate."
The final determination reinforced the importance of workplace relationships: "Productive relationships are built on good faith behaviour and a requirement for both parties to be active and constructive in maintaining a productive employment relationship."
After finding the dismissal unjustified due to procedural failures, the ERA ordered compensation of $13,500 and lost wages of $13,572, both reduced by 10% for contributory conduct.
