Turns out that 90 day Fire at Will thing is a myth

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A beneficiary who gained employment through Work and Income has been awarded more than $12,000 after he was sacked just three days into his new job.

The Employment Relations Authority has ordered Fully Synced Ltd to reimburse Jon-Paul Moses for an unjustified dismissal, covering lost wages and compensation for humiliation and loss of dignity.

Mr Moses, 24, was fired by the phone repair company’s owner and director Nick Kane after he requested more time to go over his contract before signing.

The two had reached a verbal employment agreement, with Mr Moses working as a technician.

Mr Kane was then found to have pressured Mr Moses to sign the contract, but Mr Moses wanted to go over it more thoroughly with family members.

Mr Kane then fired Mr Moses in front of his mother and tore up the contract.

Oooooo… been watching too many movies I suspect.   Or Donald Trump.

Mr Moses’s mother, Maryrose Morgan-Coakle, said the ordeal had taken an emotional toll on him, impacting his confidence and making him depressed and withdrawn.

Fully Synced was ordered to pay Mr Moses $6946.87 for lost wages, $2000 as compensation for humiliation and loss of dignity, $3100 towards representation and filing costs, and $34.20 holiday pay.

So the 90 day “Fire at Will” bill still requires due process.   Not so much ‘at will’ then.  And, I suspect, if you don’t want to keep someone, you better start in the first month, because the due process with warnings, reviews and painstaking documentation could push you past the 90 days.

Luckily, scumbag employers are in the minority, but scumbag employees need to be feared!

Anyway, Synced Repairs in Parnell are probably wiser after the fact.

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– NZ Herald

 


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  • Seriously?

    If the employment agreement was not finalized, there was no 90 day trial period on which to rely – the trial period doesn’t happen automatically, is it something that can be agreed in an employment agreement.

    To me this story is about an inept employer, and maybe an opportunistic employee, but it is not about a failing in the trial period law.

    • Really?

      Agree – was going to say the same.
      I am always very careful to make sure the prospective employee has enough time to review the contract (and can request more time if required) AND no one starts without signing the contract.
      I suspect both of these were not done in this instance.

      • Urbanviper

        Exactly. The employee agreed to start. He was given the contract on the first day and the employer expected him to just sign it, but the employee wanted time to go over it and have it reviewed by his uncle who was a lawyer. The employer became anxious (too late) and said the employee shouldn’t come to work until it is signed. When it dragged on longer the employer is alleged to have ripped up the contract and said ‘no’. He must have assumed the employee wasn’t hired yet.

        *problem being he was employed when he started work.

      • Seriously?

        It gets worse. I just skimmed the judgment and it seems one of the topics on which the employee wanted to get advice before signing the agreement was known by the employer to be the trial period. In part it reads:

        [18] At this point Mr [employee] was about 24 years old and was living at home with his parents. The next day Mr [employee] told Mr [Owner] that his family were reviewing the agreement, including his father who lectures in finance and accounting, and his uncle who was a lawyer. He told Mr [Owner] that he needed more time. A full review looked like it was going to take a little while, possibly until Mr [employee]’s uncle could analyse the agreement in the upcoming weekend. However, some concerns were apparent early on. These included:

        (a) a trial period which removed Mr [employee]’s ability to bring a dismissal personal grievance claim. Mr [employee] was told by his family that such a clause could not be valid as he had already started work;

        (b) a restraint of trade clause preventing Mr [employee] from working within a certain radius of [the buisness] for 18 months; and

        (c) the “return of service” bonding provision, when Mr [Owner] was not contributing to the costs of Mr [Empoyee]’s training.

        [19] Mr [Owner] appears not to have understood why, in the circumstances of Mr [employee]’s employment having already started, the agreement could not contain an effective trial period, when the Department of Labour’s material contained such a clause. However, there was no indication that he made any attempt to get advice on this issue.

        • SlightlyStrange

          that point (b) is interesting.
          I wonder whether the clause was about specifically working in the same FIELD within a certain radius, or was wider-ranging, in that he couldn’t get a job anywhere within a certain radius.
          The sound of some of those clauses would have had ME running for independent advice, and I studied employment law at university.

    • I would imagine the verbal contract puts everything in place. Are you seriously suggesting that only after a written contract is signed that the laws come into effect?

      • Seriously?

        In terms of 90 day trial periods (and some other things such as fixed terms in contracts), yes.

        • That’s why I don’t do that sort of stuff, because it is so counter intuitive. So working on verbal contract provides more protection than a signed contract in which you sign your rights away.

          How am I doing now?

          • Seriously?

            Getting there Pete.

            Try, working on a verbal agreement enhances the likelihood of misunderstanding and failures of recollection, whereas reducing it to writing ensures you are talking about the same thing.

          • Urbanviper

            Plus verbal contracts only favour the employee. Not just legally but due to the process and benefit of the doubt. There are employees out there that will raise a PG at the drop of a hat and there are lawyers who will do anything to get their client a payout. They know the tricks.

      • Kiwiracer

        I think that if nothing is signed then an implied ‘good practise’ verbal contract, definitely no 90 day period, I wouldn’t want to be the employer in any dispute in this situation.

  • Annoyed

    The problem is that the 90 day rule has to be agreed to in the employment contract.He hadn’t signed the contract so how does that even work? Also, there must be a signed contract for him to be legally employed, so his unwillingness to sign should surely result in him not being employed. Unfortunately, this isn’t what happens in the real, employee friendly world. In the case of he said/he said, the ERA seems to always come down on the side of employees. Even when the employee is clearly in the wrong the ERA tend to award the employer half the blame.

    My issue as that the guy, upon being told to go home immediately reached for a mediator. It seems like he (or his mother) had at least some idea of the process required to win an ERA case. They also pulled out the whole “depression & confidence” argument as no evidence is needed.

    The 90 day rule needs to be extended to apply automatically and require the contract to state otherwise if it’s not to apply.

    • Urbanviper

      An employment relationship can exist without a contract, it is just that the employer can be fined for not providing one and without a contract the employer basically has no rights.

      • Kiwiracer

        As I understand it, the 90 day period is only if it is in the contract, if no contract signed no 90 day period.
        Never let anyone start work before they have signed a contract.

  • Muffin

    Dont let them come on site for their first day until the agreement is signed, put that in writing at the time of sending or giving them the contract.

  • Gazza

    Good to see WO followers have a grip on the 90 trial period. Great piece of legislation that did not result in the sky falling in, but you have to get it right if you want to use it and as has been pointed out already it must be signed off on before the employee starts work…

  • kayaker

    They had already reached a verbal agreement and the employee was already working. From my experience in HR, the parties must mutually agree to the 90-day trial period being in the contract. The employee had every right to ask for more time. Every time we issue a contract to a person we want to hire, we always have a written statement on the contract to the effect that they should seek advice before signing.

  • localnews

    the young man obviously has more skills than the average unemployed person, he wasnt applying for a labouring job, so it makes you wonder why he is unemployed and if he really wanted the job. Does it sound like his parents and uncle were giving him good advice?

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