Preston Russell Law

S had several conversations with managing staff about the economic struggles they were going through. The manager dismissed S one day by simply saying there was no work for her and giving her two weeks notice. Due to the significant distress that S suffered as a consequence of this news, the manager did not require her to work out her two week notice period.

Ms Spark alleged she was unjustifiably dismissed. This case involved two main issues. Firstly, the ERA ruled out any possibility of the employer relying on the 90 day trial period.  As I have said in previous articles, an employee will only be subject to a trial period provision if it has been agreed upon before employment commences. S began employment under contract A, which contained no trial period provision. It then came to the attention of management staff that S had been employed under the wrong contract. So, after S’s employment had already begun, she signed contract B (the contract the employer intended her to sign originally, containing the 90 day trial period provision). When S signed the second contract containing the trial period she had been “previously employed by the employer”, albeit only for a number of days. Therefore the trial provision had no force as it was not agreed to prior to the commencement of employment, and it could not be relied upon to justify the dismissal.

The second issue concerned redundancy practices. This case was effectively a dismissal for redundancy (because no hours were available to S). However, in evidence the manager made it very clear that she had not told S that she was redundant but simply that she was unable to offer her any more hours. None of the usual requirements of a redundancy dismissal were followed by the employer.

There was no proper consultation: at the very least an employer needs to engage with the affected employee, tell them what needs to change in the business and seek their suggestions about how they might be able to contribute to the overall welfare of the business and it’s continuity. No discussion of this nature ever took place with S.

There was no measured and reflected process around how individual staff members were to be dealt with as part of the redundancy process. It appeared that the pharmacy decided to simply “get rid of” S on a “last on first off” basis. Not surprisingly, the Authority held that this was not a fair process because there may have been other possible alternatives which could have been formulated by proper consultation between the employer and employee.

The Authority had no trouble determining that this was an unjustified dismissal. In deciding compensation, the Authority held that they had to balance on the one hand that this was an ill considered dismissal which caused S great distress, and on the other that this was an employment for a short duration at a low rate of pay where the employee never worked a great many hours. The Authority awarded S compensation of $2,000; a contribution to lost wages in the sum of $1,000; and a reimbursement of the Authority’s filing fee ($71.56).

This case exemplifies that for a redundancy dismissal to be justified there are certain requirements that must be followed. If an employer is going to dismiss someone because the business cannot sustain that position – this is a redundancy dismissal. In that case the right procedures must be carried out to ensure the good faith principle is abided by. This case also reminds employers that a 90 day trial provision must be agreed to in writing prior to the commencement of employment.