Employee awarded more than $24,000 for wrongful dismissal

An employer who wrongly tried to use the 90-day trial period for new workers to fire an employee has been ordered to pay him more than $24,000.

Samuel Hema was employed by Michelle Bateman as national director of the International Cultural Youth Exchange (ICYE) in June last year, the Employment Relations Authority reported.

"Mr Hema had been led to believe by Ms Bateman when she interviewed him and offered him the job that his employer was a company with the name that appeared on the employment agreement. He subsequently found out he had been mistaken about that," the authority said.

"After working as National Director of ICYE Ltd, the position described in the agreement, for about a month, Mr Hema became concerned as to the existence of his employer and found out when he checked the Register of Companies that it either had never existed or had ceased to exist before he commenced employment."

However, he continued in his job and to have contact with Ms Bateman. He carried out his job as per his employment agreement, and he was paid for doing so.

"On the basis that he must have been employed by some person if he was working and being paid for it, he reasonably concluded that the employer must have been Ms Bateman. I agree that an employment relationship may be found to have existed between Mr Hema and Ms Bateman in those circumstances and I find accordingly," authority member Alastair Dumbleton said

However, on October 1 Ms Bateman emailed Mr Hema, referring to a trial period and saying he would not be offered a position.

"I also find that there were no substantive grounds to justify Mr Hema's dismissal, which was effected by the brief email from Ms Bateman received on 1 October 2010," Mr Dumbleton said.

Mr Hema's individual employment agreement did not contain a trial period provision and, in any case, he had been employed for more than 90 days by that time.

The 90-day trial period was introduced in April 2009 and allowed companies with fewer than 20 workers to hire new workers on the scheme, if they agreed to it. Under it, there is a 90-day trial period during which the worker can be dismissed without bringing a personal grievance case against the employer, unless it is on discriminatory grounds.

It has since been extended to cover all work places.

Mr Dumbleton found in favour of Mr Hema and ordered Ms Bateman to pay him:

* eight weeks' notice pay - $6923 gross;

* unpaid holiday pay - $1500 gross;

* reimbursement of lost wages for 4-1/2 months - $7215 gross;

* compensation for hurt and humiliation - $7000; and

* breach of the Holidays Act - $1500 (plus a further $1500 to the Crown).

She was also ordered to pay him 5 per cent interest a year on the notice, holiday and wage pay, which totalled $15,008, until he was paid in full.

Ms Bateman was also ordered to pay Mr Hema's legal fees of $6059.62 and filing fee of $71.56.

She did not attend the meeting at which the matter was decided, despite having previously had it delayed, and nor did she send a representative.