Authority warns good intentions don't cure procedural shortcuts on 90-day trials
An Auckland accounting firm's attempt to soften a trial-period dismissal by offering resignation has cost it $7,000 after the Employment Relations Authority ruled it amounted to constructive dismissal.
In a determination released on 20 April 2026, Authority member Simon Greening found that BDS Chartered Accountants Limited unjustifiably constructively dismissed administrator Courtney Jansen, even though the firm believed it was acting compassionately.
Jansen started at the small Auckland firm on 4 November 2024 under an employment agreement containing a valid 90-day trial provision. By early December, cracks were showing. After a colleague resigned, she found herself managing five inboxes and juggling 44 of the 130 tasks on the firm's administrative master-list, while still learning the ropes.
On 9 December 2024, she emailed external HR consultant Sharon Searle to flag her workload. Three days later, she sent another email saying training had been "quite unorganised and messy" and that she was aware assistant manager Isa Taylor was frustrated with her progress. In that second message she added: "I would just like for you to keep a record of me recognising this for future reference if required as I have gathered I need to be able to hold my own against both Peter and Isa performance wise and be able to explain short comings."
The firm responded by meeting with her on 11 December 2024 and introducing a daily task email setting out priorities. But just over a week later, on 19 December 2024, Searle phoned Jansen at 10.51am to tell her the firm was ending her employment under the trial period. Searle then offered her the option to resign instead, framing it as a way to support her future job search, and asked her to decide by the end of the day.
Jansen left the office at 11.30am, and at 5.30pm emailed her resignation. The firm later argued she had actually been dismissed during the call, with the resignation simply being how her record would read.
Greening disagreed, finding that Jansen resigned, but did so under circumstances that amounted to constructive dismissal. Presenting an employee with a choice between quitting and being fired, he concluded, crossed the line. Greening also observed that, had he found Jansen's employment was terminated during the call rather than by resignation, BDS would not have been able to rely on the protection of the 90-day trial provision because it had not complied with the one-week written notice requirement in her employment agreement.
Jansen's other claims did not succeed. Greening accepted that training and support, while imperfect, were adequate given BDS had only about 15 staff and the employment relationship was still in its infancy. Her allegations of a hostile work environment, including claims that Isa Taylor commented on her hair, make-up and clothing, and that director Peter Taylor made "passive aggressive comments" about her workload and required her to scan and electronically file client records running to roughly 500 to 1,000 pages during her final week, were not upheld because she had not raised bullying concerns with the firm while still employed. Those specific concerns first appeared in her personal grievance letter on 24 February 2025.
A separate allegation that a racially insensitive comment was made by someone at a company Christmas event also failed, as Jansen had not raised it with BDS at the time and the firm was unaware of it. A claim that BDS had breached its good-faith obligations under the Employment Relations Act 2000 was also dismissed, with Greening finding no legal or factual basis for it.
Greening awarded $7,000 in compensation for hurt and humiliation under s 123(1)(c)(i) of the Act, payable within 28 days. He declined to order lost wages, finding that dismissal had been inevitable, BDS had already prepared a termination letter, and the firm had already paid Jansen the equivalent of one week's notice, including statutory holidays up to 27 December 2024. Costs were ordered to lie where they fall.
The case is a sharp reminder that good intentions do not cure procedural shortcuts. Offering a graceful exit can still be read as forcing one. And on 90-day trials, the written notice requirements in the employment agreement are not optional fine print without strict compliance, the trial period's shield against personal grievance claims may not hold.
