Sacked worker loses case because he had started 90-day trial period

A quality controller employed at a Hastings fruit packing facility has been unsuccessful in claiming he was ...
File Photo/Barbara Withington

A quality controller employed at a Hastings fruit packing facility has been unsuccessful in claiming he was unjustifiably dismissed.

The precise time at which Hamish Pogai signed his employment agreement was critical in the Employment Relations Authority's decision to dismiss his claim of unjustifiable dismissal.

Pogai was selected as a quality controller at the Mount Erin fruit packing packhouse near Hastings after a selection process in November and December, 2015.

Site manager Mark Parkinson rang Pogai on December 23, told him he had the job, emailed a contract for him to sign, and told him to be on the site at 8am on January 18 last year.

Hamish Pogai was employed at Mount Erin Ltd, near Hastings.
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Hamish Pogai was employed at Mount Erin Ltd, near Hastings.

In a hearing before the authority last month, Pogai said he turned up around 8am. He said he was shown around, introduced to staff and taken back to an office where he signed the agreement "about an hour after I turned up".

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Parkinson told the authority Pogai arrived about 7.45am and had signed the agreement before he was clocked in and began working.

The office administrator said she arrived at 8am, by which stage Pogai's agreement was signed on her desk. Pogai challenged that, saying she arrived close to 8.30am, but records used by the authority showed she clocked in at 8.02am.

The authority and the parties agreed that the time at which Pogai signed the agreement was critical, as under the 90-day trial provision of the Employment Relations Act a trial period must be agreed to when the employment relationship commences "and not retrospectively".

Pogai said he had already started work when he signed the agreement. 

In a decision released this week, authority member Michael Loftus said there was inconsistency in Pogai's version of events, but not in Parkinson's, or the office administrator's.

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"The evidence leads me to conclude the employment agreement was signed before Mr Pogai's scheduled commencement time of 8am," Loftus ruled.

He said the agreement complied with requirements of the Act, meaning Pogai was precluded from bringing a personal grievance for unjustified dismissal and his claim was dismissed. 

Parkinson said on Tuesday that the situation had been unfortunate. He said the company had treated Pogai "with integrity and compassion" and had tried to resolve the matter through mediation.

"We try our very best to do things correctly in terms of employment and health and safety law, and we believe we have good procedures around these things," Parkinson said.

Pogai has been approached for comment.

The 90-day trial provision 

• For a specified period (not exceeding 90 days), starting at the beginning of the employee's employment, the employee is to serve a trial period. During that period the employer may dismiss the employee.
• If the employer does so, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.

 - Stuff

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