Trial period valid despite failure to specify dismissal date - Employment Update - Week 1, August

The issue of giving notice under the trial period has always been a vexed one. Employers have often found themselves in the position of being unable to rely upon the trial period due to technicalities as to how the notice was given. However, in a recent Employment Relations Authority determination, despite some imperfection in the way notice was given, it was found sufficient to allow the employer to rely on the trial period.

A trial period was found to apply, despite the fact that the employer failed to notify the employee of the date on which his employment would end when orally advising the employee of his dismissal under the trial period. On 10 August, the employer advised the employee by telephone that his employment was terminated under the trial period clause in his employment agreement. The employer did not tell the employee that his last day of work would be 17 August. This was because the employer believed the termination date was clear as the trial period provision in the employment agreement specifically referred to one week’s notice of termination. The employer had indicated to the employee that the employer would be open to a discussion about further employment for the employee while he was looking for a new job. That suggestion was left with the employee to consider. However, in response to the employee subsequently challenging the validity of the dismissal, the employer emailed on 13 August confirming that the employee’s last day of employment would be 17 August. The employer confirmed that it would be relying on the notice of termination it had given to the employee by telephone on 10 August.

The Authority did not consider that the fact the parties were initially open to negotiating a different end date invalidated the notice of termination that had already been given. No variation to the end date ever occurred, although the Authority considered that it was open to the parties to have done so. The Authority considered that the employer put the employee on notice about how his employment was ending (under the trial period provision) and when it was ending (in one week). The Authority observed that neither ss 67A and 67B of the Employment Relations Act 2000 nor the employment agreement stated that notice of termination under the trial period must include (at the time notice is first given) the date on which the employment would end.

It is important to note that since 6 May 2019 only employers who employ 19 or less employees are entitled to enter into an employment agreement with an employee that contains a 90-day trial period.

See Jobbitt v 4 Seasons Indoor Outdoor Living (2014) Ltd [2019] NZERA 246.

Reproduced by permission of Wolters Kluwer NZ