The judgment also goes on, however, to comment upon whether or not had the employer had been able to rely upon the 90 day trial period whether or not the employer was obliged to give an explanation to the employee why they were being dismissed. The Employment Court found as follows:
1. Under a valid 90 day trial period an employer is not obliged to notify an employee that they propose to end the employment.
2. Under a valid 90 day trial period an employer is not obliged to offer an employee the opportunity to comment upon the proposal to end the employment.
3. However an employer, is not entitled to refuse to give an explanation for the dismissal nor is the employer entitled to give an explanation that is misleading or deceptive.
What does this mean. If you are an employer you are entitled to dismiss someone under the 90 day trial period legislation (subject to having the correct agreement etc). You do not have to tell the person that you are intending to end the employment, you do not have to give them an input in the decision to end the employment, you do not have to give them the opportunity to improve. What you must do, however, is that if the employee asks you why their trial period has been terminated you must tell them the truth – simple.
A recent decision from Whangarei confirms that an employer can recover costs from an employee if the employment agreement is sufficiently clear.
In this case the Whangarei District Council met certain costs of Mr J. and his family when he moved from Northern Ireland to New Zealand to take up employment in June 2008. In February 2009 Mr J. left without giving notice and returned home.
The employment agreement provided that the employer would pay a one off payment of $12,000.00 for relocation expenses which were fully refundable if the employee left within two years of starting employment.
Mr J. did not come back from Northern Ireland to argue the matter. In his absence, however, the employer was able to show that the employment agreement was valid and the money was repayable. The Employment Relations Authority ordered that he repay the $12,000.00. This is an example of how employers can protect themselves with a well written employment agreement. It is also an example of how the Employment Relations Authority will uphold these agreements.
Remember the starting point in any dispute is the employment agreement.
