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Job trial rules not followed

Last updated 05:00 01/08/2014

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A Wellington cafe worker was unfairly sacked when his employer mistakenly relied on the 90-day trial period.

Davide Fagotti took his case to the Employment Relations Authority after he was fired without warning from Prefab, in Jessie St, central Wellington.

After a trial shift of just over eight hours on February 9 last year, he started work at the cafe on February 23. On March 12, he was asked into the office of Bridget Dunn, director of parent company ACME.

He was handed an envelope and told "It's not good news", and that his employment had been terminated. No reason was given, no performance issues had been raised and positive feedback was given when sought.

Authority member Trish MacKinnon said she did not doubt Dunn believed she was entitled to terminate Fagotti's employment within 90 days of its commencement on February 23.

"Her belief was misplaced, however," MacKinnon wrote in her decision, as the eight-hour shift he completed on February 9 meant he was previously employed at Prefab, and so could not be placed on a trial period.

He had performed duties that provided an economic benefit to ACME, for which he was paid. "I find the parties were in an employment relationship at that time," MacKinnon said.

It was also found that ACME had not bargained fairly over his employment agreement. Fagotti was asked to sign an employment agreement before he started work on February 23, and did not get the chance to discuss it with anyone.

He was awarded a total of $8598 in lost wages and compensation.

His lawyer, Barbara Buckett, said he was happy with the decision.

It should be taken as a caution by employers that potential employees had to be given adequate time to read an agreement, and that the 90-day trial had rules that had to be followed.

"There's a message that these 90-day trials can't just be used [in any way]. They have to strictly adhere to the proper purpose."

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