Law firm warns employers over 90-day probation

Geoff Bevan of Chapman Tripp Photo / supplied

Employers are being warned not to treat the new 90 day probation law as a 'get out of jail free card', as the first test case of the Government's law is delivered in court.

Law firm Chapman Tripp is urging employers to be careful how they interpret the provision, after the Employment Court found in favour of a dismissed worker under the 90-day trial laws.

"I think possibly some employers might be out there thinking because this is a trial period clause we can almost do what we want," Chapman Tripp principal Geoff Bevan said.

The Employment Court ruled the dismissal of Heather Smith was unjustified because Stokes Valley Pharmacy in Wellington did not comply with her employment agreement and failed to treat her in good faith.

Smith had worked at the pharmacy for almost three years, but had to re-apply for her job late last year after the business changed ownership and name, and was sacked a few weeks later.

Crucially Smith started working for the new owners on October 1, but did not sign her employment agreement until the next day.

Bevan said it was important employers made sure any employment agreement with trial provisions was signed before the employee started work.

While employers were exempt from having to provide a written reason for a decision to sack a worker, the obligations of good faith still applied, Bevan said.

That meant an employer was obliged to give a reason for the dismissal if they were asked by the employee, he said.

In this case the new owners were reluctant to give a reason for the dismissal, having been advised they were not required to do so, Bevan said.

Bevan said the court had taken a strict approach to the first case and employers who were treating the 90-day clause as a get out of jail free card would really need to sit up and take notice of the decision, he said.

"The court has scrutinised them more closely than what a lot of people might have expected."

"They (the pharmacy) will be feeling a bit hard done by and that's part of being the first cab off the rank."

It was probable the courts may relax the law for employers moving forward, he said.

"It almost undermines the purpose of the trial period by saying to employers you can use this 90 day trial period, but the courts are looking at it so pedantically it slightly undermines the purpose of it."

Unite national director Mike Treen said the law was clear.

"People will trip themselves up, I'm sure, but an employer who is reasonably careful and understands the law, will put the (90 day) clause in the agreement and make sure the employee signs it before they start work to cover themselves."

- NZ HERALD ONLINE