Monday, August 30th, 2010

More on the 90 day trial period

Outline –

The predicament of Heather Smith, and particularly the circumstances surrounding her dismissal by Stokes Valley Pharmacy (2009) Limited has become somewhat of a cause celebre for the opponents of the 90 day trial provisions of the Employment Relations Act.

Heather Smith claimed that her employer, Stokes Valley Pharmacy (2009) Limited  dismissed her unjustifiably. Her employer maintained that she was properly dismissed and was not obliged to give any reason because the employment agreement contained a 90 day trial period.

The Employment Court was asked for rulings on various aspects of the Trial Period provisions of the Employment Relations Act


Ms Smith started working for Stokes Valley Pharmacy in March 2007. In August 2009 the business changed hands. Ms Smith had to reapply for her position.

She was interviewed by the new owners, and on 14 September she was told that she had “got the job” and that a contract would be sent in the mail.

A draft Agreement was handed to her on 29 September.  The Agreement contained a “90 day trial or probationary” period.  The Agreement also said that there would be targets and regular appraisal meetings so that Ms Smith knew where she stood.

Ms Smith started working for the new employer on the 1st October.  The Employment Agreement was signed on the 2nd October.  Some changes were made to the agreement that day before it was signed.

The employer was not wholly satisfied with her performance and on 8 December 2009, she was informed that she no longer had a job.  She asked what she had done wrong.  She was told that “she was not what they were looking for and that she was inexperienced”.

The employers, who were somewhat inexperienced and dependent on legal advice, had been given a script by their lawyers and slavishly stuck to it.  They were advised and believed that they were not required to provide any explanation or justification for the dismissal.

Did the trial period provision apply?

The Employment Court had a number of issues to resolve.  The first one was whether the employer was entitled to rely on the Trial Period provisions of the employment agreement.  If the employer was not entitled to rely on those provisions, it was accepted that Ms Smith was dismissed unjustifiably.

The Court firstly considered the rationale for the statutory provisions.  It noted that the purpose was to allow employers some room in engaging and dismissing new employees where there may be doubt as to their suitability for the position.

The Court then noted that as the sections removed employee protection provisions (access to dispute resolution and to justice), they should be strictly interpreted.

The Court decided that the trial period provision in the Agreement was not available to the employer.  The trial period is only available to employees new to a particular employer.

The Court found that at the time of signing the Agreement, the employee had already been offered and had accepted the job and had worked for one full day.  Applying the strict interpretation of the definition of “employee” in the Act the Court concluded that on the 2nd October 2009, Ms Smith was an existing employee.


The Court then considered whether Ms Smith was properly dismissed. Even if the Trial Period provisions had applied , Ms Smith could still have brought a personal grievance claim unless it could be shown that she was lawfully dismissed.

The Section requires the employer to give notice of termination within the 90 day period. The relevant Agreement required that 4 weeks notice must be given.  Here,  no written notice had been given.  The employee was orally advised of her immediate dismissal.

The Court concluded that the dismissal was unlawful because written notice was required by the Agreement and had not been given.

As an employee is only barred from bringing a claim if the employment is terminated in accordance with the Act, in this case where was no bar to the employee bringing a personal grievance claim.

Reasons for Dismissal

Next the Court considered whether the employer was obliged to inform the employee of the employer’s reasons for dismissal.

If an employer proposes to make a decision that will or is likely to have an adverse affect on the continuation of employment, the employer must give the employee access to relevant information and an opportunity to comment on that information.

Under Section 120 of the Act, a dismissed employee can request the employer to provide a statement in writing of the reasons for the dismissal.  This must be provided within 14 days of the request.

Neither of these two provisions apply where there is a lawful dismissal during a trial period. (Note – even though the Court had decided that the trial period provisions did not apply, it still considered this aspect).

Section 4 of the Employment Relations Act requires parties to deal with each other in good faith. This Section deals with a number of aspects of good faith and how it is demonstrated.

For the purposes of this exercise, the 2 relevant components of the obligation to act in good faith are

  1. Parties to an employment relationship must be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative and
  2. If an employer proposes to make a decision that will or is likely to have an adverse affect on the continuation of employment, the employer must give the employee access to relevant information and an opportunity to comment on that information.

Where a trial period applies, an employer is not required to provide the information nor is the employer obliged to give the employee the opportunity to comment. The question before the court was whether the obligation to be responsive and communicative did require some explanation

The Court noted that it is important for employees to know why they have failed a trial period even though they have limited ability to challenge it.  They should not be deprived of the ability to learn from an unsuccessful trial.  Basically, the Court held that there are good employment relations and human personality reasons for giving explanations for the failure of a trial period and concluded that there was an obligation to give an explanation for the dismissal .

So, although an employer does not have to notify the employee of a proposal to terminate employment nor is the employer obliged to give the employee opportunity to comment, the employee can still seek and is entitled to receive an explanation for the dismissal when notice is given.

Effect of the appraisal regime

The final issue was whether he employer’s failure to comply with the appraisal regime contemplated by the Agreement unjustifiably disadvantaged the employee.

The Agreement clearly contemplated that the employer would train her in the first instance and then assist her maintain the level of competency achieved during the training period with regular and formal assistance from the employer.

In this case there were never any formal meetings designed to address problem areas nor were there any specified competency targets. Some issues were dealt with on an ad hoc basis, but there was no formal procedures implemented.

The employer maintained that because this was a relatively small business and the owners were working pharmacists as well as managers and owners, there was no real opportunity to conduct performance assessment in a formal manner unless it was done outside work hours.

The Court wasn’t convinced by this argument.  The clause was included by the employer.  The employer was expected to comply with it.  Because of the failure to establish performance targets, Ms Smith was deprived of the opportunity to perform to an acceptable standard.

The Court noted that the agreement confused trial and probationary periods. They are treated differently by the Act.

A probationary period is one where the employee is under close and critical assessment. Permanent employment will be assured only if the employer’s standards are met.

The employer must play an active role in the probationary period, pointing out short comings, and  advising about any necessary improvement. The employer must warn of the likely consequences if its expectations are not met.

The objective is always that the trial will be a success, not a failure. Both parties must contribute to its attainment.  If it becomes apparent to the employer, judging fairly and reasonably, that the trial is not a success, the employee is entitled to fair warning before the end of the probationary period that the employment will then be coming to an end.

Lessons to be Learned

  1. Unless the Employment Court decision is overturned, any Employment Agreement signed after a new employee has commenced work may not have a trial period provision
  2. If employment is to be terminated during the trial period, appropriate notice must be given.  If the Employment Agreement says that 4 weeks notice must be given for termination then 4 weeks notice must be give for termination of the trial period.
  3.  The good faith obligation to communicate probably requires the employer to explain to the employee exactly why the employee is being dismissed.  The good faith obligation to be responsive definitely requires an employer to give a truthful explanation.
  4. Trial periods and probationary periods are not necessarily the same.  An employee has greater security during a probationary period than a trial period.  It is best not to wrap features of both in the same clause of the Employment Agreement.
  5. Employment Agreements should be living documents.  They should reflect what actually happens in the work place.  Any employment agreement should be studied carefully by an employer in order to ensure that the employer can and intends to comply.  A custom made Employment Agreement should not be plucked off the shelf unless it is appropriate in any individual case.


It may seem that the interpretation of “new employee” is plunging the depths of pedantry given that the employee was given a copy of the employment agreement before she started and it was signed on the second day.  It will certainly create some practical difficulties for employers.  They will have to be particularly careful to ensure that any initial offer of employment is conditional upon the execution of an Employment Agreement and that work will not start until the Terms of Agreement are signed.  This particular point may well be appealed.

Saturday, October 10th, 2009

Have I got enough to fire him yet?

I doubt whether many employment advocates have not been asked that question from time to time.

In my experience, once the factual circumstances have been properly analysed and assessed, the answer will be” “no”. This is primarily because few employers really understand the need for a fair and thorough investigation, whether the issue is one of non-performance or misconduct.

So often there is some festering discontent about non-performance where the employee is unaware of the requisite standard or a sense of outrage over a particular event where judgement is made on an initial hypothesis (usually involving assumptions of wrongdoing) and facts are selected to fit that hypothesis.

This article emphasises the need for a thorough and fair investigation process.  A recent Employment Court case clearly illustrates the consequences of failing to meet the standard.

Allan v Transpacific Industries Group Limited[1]

Mr Allan was employed by Transpacific Industries Group Limited as a driver.  He was on the night shift.  His job involved collecting medical waste for disposal from various hospitals.

Employees used a card to clock in and clock out.  The company did not monitor hours worked.

On 24 January, 2007, Mr Allan clocked in at 9:30 PM but a supervisor reported that he appeared not to have arrived for work until at least 11 PM.

On 25 January, 2007, Mr Allan clocked in at approximately 9:30 PM.  He was not, however, present and his truck had not left the plant.  Attempts were made to contact him unsuccessfully.  Eventually he made contact at approximately 10:40 PM and arrived back at work at 10:45 PM.

The company convened an investigation hearing shortly after the end of his shift.  He was suspended and another meeting convened.  That meeting appears to have been relatively brief.  Mr Allan gave an explanation for his absence.  The Company did not believe him and summarily dismissed him for falsifying company records (his time sheets)

The company concluded that there was a high probability of collusion — somebody else was clocking him in.

Mr Allan was unsuccessful before the Employment Relations Authority but was successful in the Employment Court.

Lessons to be learned

The Employment Court decision  highlights the approach that will be taken by the Employment Relations Authority when considering the decision of the employer.

The Employment Relations Authority will not review all of the evidence and make a decision on the merits of the case.  Its function is to look at the substance and procedures leading to the decision made by the employer.  Having done that, the Employment Relations Authority must apply an objective standard to that decision and decide what a fair and reasonable employer would have done and how the employer would have done it, in all the circumstances at the time.

You may well ask whether there is a difference between the two approaches . The critical difference is that except to a limited extent, the Employment Relations Authority cannot take into account evidence which second guesses the employer’s decision (either by reinforcement or condemnation).  The Employment Relations Authority can only look at the evidence that the employer relied on at the time.

The exceptions are:

  1. The Employment Relations Authority will consider evidence that the employer ought reasonably to have known but did not (for example, as a result of an inadequate investigation) and
  2. The Employment Relations Authority may take into account previously unknown evidence when deciding on remedies.

An  employer cannot look at the personal grievance process as an opportunity to have a second bite at the cherry.  A bad process is likely to lead to a bad decision.  An employer takes a considerable risk by ignoring process.

The Employment Court has previously indicated that where an employer has failed to carry out a fair and full investigation, it will usually not be possible for the employer to show that the decision to dismiss was one of that a  fair and reasonable employer would have taken.  That is simply because a fair and reasonable employer would not make a decision to dismiss except as a result of a full and fair investigation.

In the Allan case, the Employment Court made the following findings:

  1. The employer did not comply with the procedure contained in the employment agreement.  That agreement contained a process of investigation.  The employment agreement is the first port of call.  Failure to comply with the provisions of employment agreement as to process may even result in the imposition of penalties.
  2. At the first investigation meeting, the employer mentioned only one of the alleged incidents.  The employer asked for an explanation of the events of 25 January.  It did not mention the events of 24 January.  An employer must advise the employee of all matters of concern so that the employee has the opportunity to comment.
  3. The employer conducted the first investigation meeting very shortly after a 12 hour shift.  This was inadequate notice.  The inadequacy was compounded by the fact that not all allegations were put to the employee.
  4. The employer did not believe the employee’s explanations but made no comment to the employee.  The employer should have advised the employee that it had difficulty accepting the explanations and why.  The employee must be given the opportunity of clearing up any doubt if possible.
  5. The employer had failed to interview other staff members who could have given evidence that would have assisted the employer’s decision.
  6. The employer had made various assumptions about the behaviour of the employee.  All assumptions were consistent with the hypothesis that employees were involved in some form of rort which involved clocking up hours that were not worked.  Evidence inconsistent with those assumptions were either ignored or not sought out.  An employer must test all assumptions in order to ensure that they are based on sound fact.
  7. The focus is on what the employer honestly believed from the information that it knew or ought reasonably to have known had it conducted a fair and reasonable enquiry.
  8. The Employment Court did make some findings against Mr Allan.  For example, on one of the  days in question, Mr Allan had forgotten his keys.  He returned home.  He did not clock out when returning home.  He had expected his employer to meet the cost of his mistake.  When returning home he was not working for his employer.  He was paying the price of  having forgotten to bring the keys.  Although he had a reasonable explanation for his absence, he did not have a reasonable explanation for not recording, properly, his absence from work for personal reasons.
  9. On the second occasion, he said that he was having a meal break.  He acknowledged that his meal break was excessive.
  10. These criticisms were relevant in reducing the compensation payable to him.  They were not relevant to the issue of justification of his dismissal.  He was dismissed for falsifying his time records by having somebody else clocking in for him.  He was not dismissed for having an excessive meal break or charging his employer for the time he spent collecting keys left by mistake.

Despite the criticisms, Mr Allan received compensation for loss of wages in the summer $17,000 and compensation for non-economic losses (embarrassment, humiliation etc) amounting to $20,000.


It is possible that employees were involved in a rort.  The employer made that assumption.  However, it did not carry out a proper investigation.  It did not test its assumptions.  It did not satisfy itself on the balance of probabilities that allegations against the employee were correct.  It did not have regard to the gravity of the allegation and the need for the proof to be as convincing as the charge was grave.

These failings were fatal and extremely expensive.

[1] Employment Court ARC 30/08