The 90-day rule: part two

OPINION: Last week I discussed the implications of the first Employment Court decision regarding an employee who was dismissed by an employer relying upon the 90-day trial period which was brought in on March 1, 2009, writes Mary-Jane Thomas in this week's Work to Rule.

You will recall that the Employment Court found that, for several reasons the employer could not rely upon that section. The judgment also goes on, however, to comment upon whether or not had the employer had been able to rely upon the 90-day trial period whether or not the employer was obliged to give an explanation to the employee why they were being dismissed.

The Employment Court found as follows:

1. Under a valid 90-day trial an employer is not obliged to notify an employee that they plan to end the employment.
2. Under a valid 90-day trial period an employer is not obliged to offer an employee the opportunity to comment upon the proposal to end the employment.
3. However an employer, is not entitled to refuse to give an explanation for the dismissal nor is the employer entitled to give an explanation that is misleading or deceptive.

What does this mean? If you are an employer you are entitled to dismiss someone under the 90-day trial period legislation (subject to having the correct agreement). You do not have to tell the person that you are intending to end the employment, you do not have to give them an input in the decision to end the employment, you do not have to give them the opportunity to improve. What you must do if the employee asks you why their trial period has been terminated you must tell them the truth.

A recent decision from Whangarei confirms that an employer can recover costs from an employee if the employment agreement is sufficiently clear. In this case the Whangarei District Council met certain costs of Mr J and his family when he moved from Northern Ireland to New Zealand to take up employment in June 2008.

In February 2009 Mr J left without giving notice and returned home.

The employment agreement provided that the employer would pay a one off payment of $12,000 for relocation expenses which were fully refundable if the employee left within two years of starting employment. Mr J did not come back from Northern Ireland to argue the matter. In his absence, however, the employer was able to show that the employment agreement was valid and the money was repayable.

The Employment Relations Authority ordered that he repay the $12,000. This is an example of how employers can protect themselves with a well-written employment agreement. It is also an example of how the authority will uphold these agreements.

Remember the starting point in any dispute is the employment agreement.

» Mary-Jane Thomas is a partner at Preston Russell Law. Email questions to mary-jane.thomas@prlaw.co.nz

- © Fairfax NZ News

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Kevin Middleton   #1   01:04 pm Sep 06 2010

What is a contract?.A contract is,an entity (employer)contacts you & gives you a verbal yes to a fulltime permenant job,that is a contract in its full initial version. Then you actually start a job on a given time frame after quickly signing a written contract,that is another contract?. It is then stated you are on a trial period of 90 days,that is an add-on to the contract?. There are a lot of employers that continually use the 90 days to employee temporary workers,as Winz statistics will show. This has been going on for about 10 years. It does not help create extra jobs,it is not appropriate behaviour when Winz supplies the funding for you to fly up to Auckland/Wellington? to start that "job"after getting written proof from that employer of that"job",then have the employer tell you to "fxxx- off". 90 days is about the time needed for the learning curve for any job anyway,good employers are not thick-enough to not give a person the confirmation of fulltime work after that period. David Langey stated before he died,"there not worth working for,if they dont support the workers".

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