'Miscommunication' leads employer to think worker was job candidate

In unjustified dismissal case, worker claims he was fired before starting work

'Miscommunication' leads employer to think worker was job candidate

The Employment Relations Authority recently dealt with a case involving a worker who was dismissed from their job before even starting work.

The worker had seen an online job advertisement, applied for a position as an installer with Terra Lana Products Limited, and was offered the role.

After signing an individual employment agreement, the worker was set to start work but needed to delay their start date due to a family bereavement.

Was the worker employed?

A central question in this case was whether the worker could be considered an employee, given that they had not actually started work.

The Authority found that the worker was a "person intending to work" under section 6(1)(b)(ii) of the Employment Relations Act 2000, as they had been offered and accepted work as an employee and had signed an individual employment agreement.

However, the employer argued that the events leading to the dismissal were the result of an internal miscommunication, with the general manager mistakenly believing that the worker was a potential candidate for employment rather than an employee.

Despite this, the ERA was satisfied that the worker had accepted the role and was set to commence work on an agreed date.

Unjustified dismissal

The Authority found that the worker was indeed an employee, despite not having physically started work, as they met the definition of a "person intending to work" under the Employment Relations Act 2000.

The ERA determined that the worker was unjustifiably dismissed, and awarded them compensation for lost wages and humiliation, loss of dignity, and injury to feelings.

The Authority found that the worker was dismissed during a phone call with the branch manager, who told them "We can't have you" and later confirmed, "As of now you're not employed with us."

Despite the employer's attempts to rectify the situation by claiming there had been a misunderstanding, the Authority determined that the dismissal was unjustified.

As the Authority noted, "While I accept, as submitted by [the employer], that the events arose from an internal misunderstanding, there was no substantive justification for the dismissal. There was no issue as to [the worker's] conduct or performance that could be said to have provided a justification for dismissal."

Having found that the worker was unjustifiably dismissed, the Authority awarded them compensation for lost wages and humiliation, loss of dignity, and injury to feelings.

The worker was awarded $3,500 in lost wages, calculated based on the difference in their hourly rate at their new job over a period of 35 weeks.

The ERA also ordered the employer to pay the worker $15,000 as compensation for humiliation, loss of dignity, and injury to feelings.

Additionally, the employer was found to have breached the notice period provisions in the individual employment agreement. The Authority ordered the employer to pay a penalty of $3,000, with half to be paid to the worker and half to the Authority via the Crown account, as well as $2,080 to the worker for the unpaid notice period.

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