ERA finds trial period invalid after employer fails to give notice, dismisses worker by email
The Employment Relations Authority (ERA) has ruled that a portable buildings company unjustifiably dismissed a part-time marketing consultant after relying on an invalid 90-day trial period provision to end her employment by email.
The ERA found that the employer could not rely on the trial period in the worker's employment agreement because it failed to provide the three days' notice the agreement required, and because the agreement was signed after she had already commenced work.
The company's sole director admitted during the investigation meeting that the company did not provide notice or payment in lieu, saying it must have been "overlooked" because of the unusual circumstances of her employment.
The ERA said it is "well established that deficient notice is not lawful notice," and found that this conduct invalidated the trial period provision.
The Authority also found it "more likely than not" that the employment agreement was signed at least an hour after the worker started work on her first day, rejecting the director's evidence that signing was the "first thing" she did. It dismissed, however, the applicant's submission that her paid commute from New Plymouth to Hamilton the day before constituted work.
With the trial period invalid, the dismissal was assessed against the test for justification under section 103A of the Employment Relations Act 2000.
"The dismissal was unexpected and perfunctory, delivered as an email with minimal explanation and no reasons," the Authority said. "[The worker] had no idea [the company] had concerns about her performance, no idea what those concerns were, and no opportunity to do anything about them in any event."
The Authority also found the company unjustifiably disadvantaged the worker by refusing to provide written reasons for her dismissal, as required under section 120 of the Act, although her separate claim that she was inadequately trained was not upheld.
How the job ended
The worker was offered the part-time role of marketing consultant in February 2025 after the director, who knew her through a friendship with her mother, emailed her with ideas to grow the company's "portable toilet and portable buildings business nationwide."
She lived in New Plymouth, a three- to four-hour drive from the company's Hamilton base, and worked full-time at a café, leaving her available to work for the company one day each week. The role was her first professional job.
The worker worked her first day on 17 February 2025 and a second day on 3 March 2025, which largely involved cold calling competitors for information on their pricing — work she said made her feel she had to "lie" or misrepresent herself.
The following morning, the director emailed her stating: "things aren't working out so we will finish up thanks."
When she sought clarification, he replied: "We won't proceed with the employment offer, we will terminate it."
The ERA heard that the worker gave "compelling and uncontested evidence" about the dismissal's effect on her, remaining "visibly upset and confused by her treatment" at the investigation meeting.
The company was ordered to pay the worker $2,436 gross in lost wages, $15,000 in compensation for hurt and humiliation, and its employer KiwiSaver contribution calculated on the lost wages, all within 28 days. The Authority found the worker did not contribute to the situation in any way.
Her claim for a penalty against the company for breach of good faith was declined, with the Authority finding the director "wrongly but genuinely believed" he could rely on the trial period provision, falling short of the deliberate conduct required.
Costs were reserved, with the parties encouraged to resolve the issue between themselves.
