Posted on: Oct 03, 2016
In a recent case out of the Christchurch Employment Relations Authority, two employees were unjustifiably dismissed before they had even commenced work.
An important point to note is that the 90 day trial period was not able to be relied on because the employment had not actually commenced.
Two female employees were employed to work on a farm. Prior to commencing employment, they were provided with copies of their employment agreements. One was given a full-time independent employment agreement containing a 90-day trial period provision, while the other was given a casual employment agreement, with the words “full-time relief milking” handwritten on the top of the agreement.
While signing the agreements on a Monday morning, the pair told the employer that they needed to go to a nearby Work and Income office that day for a financial grant, as the lodgings provided by the employer were unfurnished. They also advised that they needed to attend a funeral on Thursday that week. The employer agreed to this, and alleged that the prospect of starting Wednesday that week was discussed, however that was denied by the employees.
The employees returned from the funeral Thursday evening and one alleged that she received a text from the employer asking if the two women wanted to go over to his house to drink whisky. In evidence, they told the Authority they believed that their employer’s intentions “were to get us drunk and to see if he could sleep with either or both of us.”
This was denied, and the employer claimed that he had asked the pair to come around to his place to discuss why the pair had not started work yet.
The following day, the employee’s did not report to work. At approximately 11 am, the employer showed up to their accommodation to inform one that she had been dismissed, and dismissed the other via a text message. The employer alleged that he told the pair that he could not employ people who made no effort to show up to work, and that he had been fed “lie after lie”. This version of events was disputed by one of the pair who alleged that their employer had stormed into the accommodation and yelled at her to leave by 5 pm that evening or “there would be trouble”.
The pair raised a personal grievance of unjustifiable dismissal, and also made allegations of sexual harassment.
Determination
The Authority first considered the 90-day trial period in Ms Dryden’s employment agreement. It noted that under the Employment Relations Act 2000, a trial period is deemed to commence “at the beginning of the employee’s employment”. As the employee was dismissed for not yet having started work, the trial period was not deemed to have taken effect. The employer’s reliance on the clause in dismissing the employee was therefore invalid.
Due to a complete lack of process followed in terminating the employment, the employee was found to have been unjustifiably dismissed.
Although the other employee was purportedly subject to a casual employment agreement, the Authority noted that the annotation “full-time relief milking” on the agreement evinced an intention on the part of the parties that she would be employed as a full-time employee. For the same reasons as for the first employee outlined above, the second employee was also found to have been unjustifiably dismissed.
Despite this, the pair’s allegations of sexual harassment were dismissed. The Authority noted that there was no evidence that an invitation to drink whisky “inevitably meant that he wanted to sleep with one or both of them”. It found on the balance of probabilities that the alleged acts of harassment had not occurred.
In assessing entitlement to remedies, one employee gave evidence that it took her five months to find a new job and that she did not want to seek another farming job given her bad experience with the employer. The Authority declined to award her more than three months’ pay (approximately $8,750) on the basis that there was a reasonable amount of farming work available at the time, and that it was not reasonable for her to turn down this work on the basis of one bad experience. She was awarded a further $7,000 in compensation for hurt and humiliation on account of the stress she suffered following her dismissal, and $900 in lost accommodation.
The other employee told the Authority that she suffered from anxiety attacks following her dismissal, which prevented her from finding a job for another five months. The Authority accepted this evidence and awarded her $14,280 in lost wages. She was awarded a further $10,000 compensation for hurt and humiliation as a result of the anxiety which recurred following her dismissal and the debilitating effect it had on her ability to seek new employment, and $1575 for lost accommodation.
The Authority declined to reduce the remedies awarded to the women on the grounds that they contributed to their dismissals. It noted that there was no evidence to suggest that there was “anything other than a misunderstanding” between them as to when work was to commence.
Key takeaways from this case
- You cannot rely on a trial period to dismiss an employee before the employment actually commences
- Dismissal before employment commences still requires a fair process
- A casual agreement that provides an indication of full time work will be considered permanent
- Variations to the agreement (eg start date) should be recorded in writing and signed by both parties
- Lost wages in excess of the usual 3 months can be awarded in some circumstances
See Dryden v Mason Dairies Ltd [2016] NZERA Christchurch 150, 6 September 2016 for more details about the case.
Disclaimer
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.
