90 Day Trial Error and Dismissal for medical incapacity…
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90 Day Trial Error and Dismissal for medical incapacity…


Employee justifiably dismissed for medical incapacity…

An employee has been dismissed 22 months after suffering a serious spinal and pelvic injury while at work. The employee returned to work after a year, under a graduated return to work programme organised by ACC. The employee completed light duties and had built up to working 16 hour weeks when his occupational medical specialist told him that he would not be able to return to work in his pre-injury role.

The employer then terminated the employee’s position because of medical incapacity.

The Employment Relations Authority rejected the employee’s personal grievance claim for unjustified dismissal.

The ERA held that the employer had acted as a fair and reasonable employer could in all of the circumstances by dismissing the employee when he could no longer perform the work he was employed to do.

However,the ERA found that the employer had unjustifiably disadvantaged the employee by not having provided him with *outplacement assistance such as assistance with CV writing and interview skills*. The employee had been offered a morning tea and a written reference, but no other support was provided to him.

The ERA reasoned that the employee was entitled to outplacement assistance as he was dismissed as a result of his incapacity rather than for any deliberate or careless fault, such as misconduct. The ERA noted that his dismissal was akin to a dismissal on the grounds of redundancy, and thus *the employer was obligated to treat the employee fairly when carrying out the dismissal.* The ERA noted that fair treatment can include providing the employee with counselling, career and financial advice, retraining, and related financial support.

The ERA awarded the employee $2,000 in compensation for the loss of benefit of receiving outplacement assistance, and $1,000 in compensation for injury to feelings.

Alan Knowsley
Rainey Collins Lawyers

*NOTE FROM ONE21 RECRUITMENT: This is where One21's Outplacement Support 'Job Steps' could have been utilised to assist the employee with Career Counselling, CV Writing, Interview Coaching and transitioning into a new job. ONE21 JOB STEPS

90-day trial provisions must have a start date says ERA!

In a recent case, four employees resigned from their job and have since applied to the Employment Relations Authority to uphold their personal grievance claims for unjustified dismissal.

At the time of their resignation, the employees were on a 90-day trial period.
The employees argued before the Employment Relations Authority that the 90-day trial provision in their employment agreements was nullified as the clauses did not state when the trial periods would begin.

The ERA noted that in order for a 90-day trial period to be legally valid, the provision must contain a start day.

The ERA held that the individual employment agreements did not reasonably imply that the 90-day trial started on the first day of the employees’ employment.
The ERA noted a number of circumstances where parties may agree that the 90-day trial period should start after the first day of employment, for example if some offsite training is to take place before an employee begins work, if there is a temporary overseas placement, or if there is a lengthy induction period.

This case is a good reminder for all employers to ensure that their 90-day trial provisions contain a start date and comply with employment law.

Alan Knowsley
Rainey Collins Lawyers

Tel (04) 473 6850
Fax (04) 473 9304
DX SP20010
Level 19, PWC Tower
113-119 The Terrace
PO Box 689
Wellington 6140

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