Employee Awarded 90000 Unpaid Wages Unjustified Dismissal
Hill v Shand (Christchurch)  NZERA 266
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It is worth remembering that an employer who defends a claim of unjustified dismissal by arguing the dismissal was justified because the employee’s position had become redundant cannot then claim that any award for unjustified dismissal should be reduced for contributory conduct by the employee.
A recent determination from the Employment Relations Authority has found a voluntary, unpaid pre-employment test did not form part of a trial period. The employees personal grievances for unjustified dismissal and disadvantage failed.
Taken from the movie “Up in the Air” with George Clooney, this clip gives an amusing example of how NOT to terminate someone’s employment. This movie is full of very amusing but highly unlawful firing’s that would undoubtably lead to a personal grievance for unjustified dismissal if such techniques were attempted in New Zealand.
Never take a prepared letter into a disciplinary meeting as it shows complete pre-determination of the outcome, which could result in an unjustified dismissal. The only exception to this is during a 90-Day Trial Period in which case it is OK to bring a prepared letter confirming the dismissal. For more information on the correct disciplinary process, contact the office.
Volunteers are expressly excluded from the definition of “employee” by s 6 of the Employment Relations Act 2000. A volunteer worker is not an “employee” because some form of hire or reward must be present. However, if a worker is working as a “volunteer” in order to get a job then the worker falls within the definition of “employee” because he or she is a person intending to work. If the volunteer is in reality an employee then he or she is entitled to bring a grievance for an unjustified dismissal.
The 90-day trial period has been extended to all employers regardless of the number of employees. All employers can now hire new employees on a trial period of 90 days or less without the risk of the employee taking a personal grievance for unjustified dismissal (they may still take a personal grievance on other grounds) in the event that the employee is dismissed during the trial period. This all sounds wonderful in theory, but what is being discovered through the Courts is that it’s not as easy as it sounds.