Truck driver unjustifiably dismissed after employer extends 90-day trial period

An Employment Relations Authority ruling shows the 90-day trial rule means exactly that.
MATTHEW BENOIT

An Employment Relations Authority ruling shows the 90-day trial rule means exactly that.

A Manawatu business has been hit in the pocket after thinking it could extend the trial period for a truck driver under the controversial 90-day trial law.

The Employment Relations Authority has ordered Palmerston North Scrap Metals to pay former employee Nicholas Duncan $17,766, after finding he was unjustifiably dismissed.

In his judgment, authority member Mike Loftus said the company's defence of extending Duncan's trial period under the 90-day trial law, which it claimed gave them protection from the legal action, could not stand.

Duncan started working with the company as a truck driver in November 2015, but was given his notice in February 2016.

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During his time there he dented a truck door while unloading steel.

After reporting what happened, he got a text message from his boss Brett Hall: "Mate i don't think its working out to well... You havnt got the experience we need" (sic).

Duncan protested, saying he had only had one accident and offered to pay the repair costs, but Hall said he needed more driving experience.

But Duncan continued working for the company, making it past the 90-day point. He understood he was to have a guaranteed full-time job, with a 50¢-per-hour pay rise, if he made it through the trial.

He said he asked about the pay rise, but was told no, before being called into a meeting a couple days later with Hall.

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Hall allegedly told him he did not meet the company's requirements, and gave him two weeks' notice.

The dismissal was confirmed with a letter, which said the standard 90-day trial ended on February 3, 2016. 

However, it also said Duncan had a clause in his contract that enabled the company to extend the trial by a month.

"As we now approach the end of the fourth month of trial, we still feel that you are not at a satisfactory level to experience to safely operate some of our vehicles and, therefore, regret to inform you that we will not be offering you full-time employment with our company," the letter said.

In his decision, Loftus said Duncan was given notice 105 days after he started employment.

But the law only allowed employers to do trials for 90 days, a time period that protected them from unjustified dismissal claims, Loftus said.

"There is no ability under the [Employment Relations] Act to extend the period, so even if [Palmerston North Scrap Metals'] assertions regarding an extension are correct, the protection would no longer exist."

The largest part of Duncan's payout, $8000, was compensation for humiliation, loss of dignity and injury to feelings.

Loftus said Duncan provided evidence of the emotional toll of dismissal on him.

He suffered stress due to his financial position, and a "feeling of inadequacy" from being dismissed, Loftus said.

 - Stuff

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