Authority awards compensation after examining conflicting termination accounts
The Employment Relations Authority (ERA) recently dealt with a case involving disputed circumstances around the end of a worker's employment after just 20 days on the job.
The worker argued that his manager called him to a meeting, expressed concerns about his attendance and performance, told him he was "not a good fit for the role" and ultimately informed him "this is your last day."
The worker claimed he was given the option of finishing his shift or leaving immediately, choosing to depart at once.
The employer provided two different accounts of what happened, initially claiming the worker abandoned his position after being spoken to about poor attendance, then later arguing through the manager that the worker left unexpectedly during a routine morning meeting.
The worker provided his recollection of the events that happened on 20 February 2024. He said that his manager called him to a meeting that morning and referred to concerns about his attendance and performance.
According to the worker, the manager said he was "not a good fit for the role" and left him in the staff room to consider whether he wanted to remain in the role.
The worker testified that around half an hour later, the manager returned and told him "this is your last day."
The worker said he was given the option of finishing his shift or leaving immediately, chose to go at once, and at the manager's request, left his work shirt on the table before departing the premises.
The employer's initial account, provided in its formal response, stated that the manager spoke to the worker about "his poor attendance" and emphasised that "such behaviour was unacceptable, especially during the initial 90-day period of his employment."
The employer claimed that "after being given time to reflect on his commitment to the company, [the worker] left the premises without informing anyone, leaving his work shirt on the counter."
However, the manager provided a different account during the ERA investigation meeting, stating he had asked the worker to wait in the staff room whilst he spoke to production staff about work for the day.
The manager accepted he may have said the worker was "not a good fit for the role" but denied making other comments attributed to him by the worker and in the company's written response.
The ERA considered various pieces of evidence to determine what actually occurred on 20 February. The worker had sent a text message the previous day stating he had "a family emergency" and could not attend work. The manager had responded saying they needed to meet about "issues you have for not turning up to work."
During the ERA investigation, it emerged that the worker's "family emergency" was actually a heated argument with his mother, leaving him feeling he was "not in the right mind set" to go to work. This information was unknown to the manager at the time of their meeting.
The company director testified that the manager's account should be preferred, explaining that a business advisor had prepared the company's initial written response but may not have accurately described information given by the manager.
Neither the director nor manager had seen the written response before it was submitted to the ERA.
The ERA noted significant inconsistencies between the employer's various accounts of events, particularly regarding whether the worker was spoken to about performance issues or simply asked to wait whilst the manager attended to other matters. These conflicting stories became crucial to determining what actually happened that morning.
Critical evidence came from text messages exchanged between the worker and manager at 11.29am on 20 February. The worker sent: "Thank you bro for the opportunity to work with you guys man appreciate it man" followed by asking about when his pay would come through.
The manager replied: "No worries. All the best. It was a pleasure meeting you." This exchange was followed by the worker asking about his outstanding pay and the manager mentioning alleged damage to customer walls that had not been reported back to the company.
The ERA found these text messages inconsistent with the employer's claim that the worker had left unexpectedly without explanation.
The ERA noted that if the worker had simply walked out without being told his employment was ending, it was unlikely the manager would have responded with "no worries" and "all the best" without asking why the worker had left or expressing surprise at his departure.
Further evidence supporting the worker's account came from an email the manager sent in March 2024, responding to a personal grievance letter.
When told the worker had "received sudden notice of termination," the manager replied: "He was on a 90-day trial period and his poor attendance was the reason for his dismissal." This response directly contradicted the manager's later claim that no dismissal had occurred.
The ERA applied the legal test for fair dismissal, which asks whether the employer's actions met the standard of what a fair and reasonable employer could have done in all circumstances.
This test considers whether the employer properly investigated concerns, informed the worker of those concerns, genuinely considered any explanation, and followed fair processes.
The ERA found the employer had legitimate concerns about the worker's attendance and performance. During his 20-day employment, the worker had been absent on four out of 12 scheduled workdays and was late on two others.
The manager also had concerns about the pace and quality of the worker's installation work, with some customer complaints received.
However, the ERA determined these concerns were not properly communicated to the worker, who was not given a reasonable opportunity to consider and respond to them. The employer had not identified specific steps needed for improvement or explained how it could support the worker in achieving better performance.
The ERA noted the worker had not received as much training as the company would have hoped to provide due to an experienced installer being injured early in the worker's employment. This meant the worker was sent to do installation work independently much sooner than originally planned.
The ERA concluded that the employer's actions constituted an unjustified dismissal. The ERA stated: "These shortfalls were defects in the process of addressing problems in the employment relationship. They were more than minor and resulted in [the worker] being treated unfairly."
Even if the worker had left voluntarily after understanding he was about to be dismissed, the ERA found this would amount to constructive dismissal, as the employer had not sufficiently investigated its concerns or adequately informed the worker of those concerns.
The ERA noted that "neither party, on 20 February, had taken the step set in their employment agreement requiring written notice to terminate the relationship."
The ERA also found this was not a situation involving serious misconduct or abandonment of employment, as the worker had maintained contact with the manager and asked about his final pay.
The ERA ordered the employer to pay the worker $4,000 for four weeks' lost wages, $8,000 compensation for humiliation and distress, $1,161 in wage arrears plus interest, and $4,000 in penalties for failing to provide employment records and pay wages when due.
