Being dismissed from a job is distressing at the best of times. When it happens just days or weeks into a new role, the impact can be even more severe. Many employees assume that during a trial period, an employer can dismiss them without consequence. A recent Employment Relations Authority decision, reported in the NZ Herald, shows that thisis not necessarily the case.
In the case, an Auckland office worker was dismissed after just 15 days of employment. The employer relied on claims of poor performance and a supposed trial period, but the Authority found the dismissal was unjustified and ordered the employer to pay more than $30,000 in compensation and arrears.
The case attracted national media attention not only because of the short length of employment, but also because of the number of procedural failures involved. It serves as a useful reminder that employment law protections apply from the very beginning of a working relationship, not just after months or years of service.
This case was reported in two NZ Herald articles. My Advocate Director Richard Anderson acted as the worker’s employment advocate and was quoted in the Herald commenting on the legal issues involved. The discussion below focuses on what employees can learn from the decision itself and how similar situations commonly arise.
Trial periods are not automatic
One of the most common misunderstandings in employment law is the belief that all new employees are on a trial period. In reality, a trial period is only valid if it meets strict legal requirements. It must be agreed to in writing, signed before the employee starts work, and drafted clearly and correctly.
In this case, the employer believed the worker was covered by a trial period and therefore could not bring a personal grievance. However, the Authority found that the trial period clause in the employment agreement was not valid. The wording was inconsistent and did not properly remove the employee’s right to raise a personal grievance if dismissed.
Because the trial period was invalid, the worker was treated as a permanent employee from day one. That meant she was entitled to the full protections of the Employment Relations Act, including the right to challenge her dismissal.
Employees should not assume they have fewer rights simply because they are new to a role. Trial periods are technical and are frequently drafted incorrectly, particularly by small businesses.
Poor performance still requires fair process
Another key finding in the decision was the employer’s failure to follow any meaningful performance management process.
The worker had no previous office experience, which the employer was aware of at the time she was hired. Despite this, she received no structured training, no induction, and no clear guidance about expectations. She was shown a computer and given template documents, but that was the extent of the support provided.
When the employer later cited performance issues such as professionalism, customer communication, and grammar, the worker said there had been no prior discussions about these concerns. The Authority accepted that she had not been given feedback, constructive criticism, or an opportunity to improve.
A fair and reasonable employer is expected to raise concerns, explain what improvement is required, provide support, and allow the employee a genuine chance to respond. This expectation applies even during the early stages of employment, and especially where an employee is new to a type of work.
Dismissing someone for alleged poor performance without warning or support is unlikely to meet the standard of procedural fairness required by law.
Financial pressure is not a justification for unfair dismissal
The employer also referred to financial hardship as part of the reason for ending the employment. However, financial pressure does not remove an employer’s obligation to act fairly and lawfully.
If an employer is considering restructuring or redundancy, a specific consultation process must be followed. Simply citing financial difficulty while dismissing an employee for performance reasons does not meet legal requirements and can further undermine the employer’s position.
In this case, the Authority found that the employer’s explanations were inconsistent and unsupported by a fair process.
Notice periods cannot be reduced as punishment
One of the more concerning aspects of the case was the way the notice period was handled.
Initially, the employer offered the worker two weeks’ notice. When she pointed out that her employment agreement entitled her to four weeks’ notice, the employer reduced the notice period instead of honouring it. Shortly afterwards, she was told that her employment would end almost immediately.
The Authority found this approach to be unlawful. Notice periods are contractual rights. An employer cannot reduce notice as a reaction to an employee asserting their legal entitlements.
Unless there is serious misconduct and a fair disciplinary process has been followed, notice provisions in an employment agreement must be respected.
Allegations require transparency and a chance to respond
The worker was also told verbally that she could not work out her notice period because a complaint had allegedly been made against her, claiming she had made someone feel uncomfortable. She was never given details of the complaint, a copy of it, or an opportunity to respond.
The Authority was critical of this approach. If allegations are relied upon in decision-making, the employee must be informed of them and given a fair chance to respond. Relying on vague or undisclosed complaints breaches basic principles of natural justice and good faith.
Record-keeping and payroll failures matter
Beyond the dismissal itself, the Authority identified multiple employment compliance failures. These included discrepancies between payslips and income reported to IRD, no records of KiwiSaver contributions, no holiday pay, and no evidence the worker was paid for her notice period.
While these issues were not the sole basis of the unjustified dismissal finding, they reinforced the Authority’s view that the employer had failed to meet its minimum legal obligations.
Employment relationships are built on trust and transparency. Poor record-keeping and non-compliance can significantly undermine an employer’s credibility in any dispute.
The personal impact was taken seriously
The Authority also considered the real-world impact the dismissal had on the worker. After losing her job, she applied for more than 60 roles before eventually securing contract work months later. During that time, she could not afford early childhood education for her daughter, had to sell personal belongings, and relied on family support to get by.
Employment law recognises that unjustified dismissal is not just a technical breach. It can cause genuine financial hardship and emotional distress, particularly where the dismissal occurs suddenly and without fair process.
In this case, the Authority awarded compensation for distress alongside lost wages and other entitlements.
What employees can take from this case
This decision is a reminder that unjustified dismissal can occur even very early in employment. Length of service does not determine whether an employer must act fairly.
If you are dismissed during a trial period, or shortly after starting a new role, it is important not to assume that the employer’s actions are lawful simply because of timing. Trial periods must be valid, performance concerns must be addressed fairly, and notice provisions must be honoured.
If something does not feel right, seeking advice early can make a significant difference. Many employees are told there is “nothing that can be done” when, in reality, the legal position is more nuanced.
Cases like this highlight how early dismissals are often more complex than they appear. Independent employment advocacy can help ensure the law is properly applied, particularly where trial periods and notice are misunderstood.
Read the NZ Herald Articles here:
If you’ve been dismissed early in your employment or told you have no options because of a trial period, independent advice can help you understand where you stand. My Advocate provides practical employment advocacy to employees across New Zealand.