Invalid Trial Period v Contributing Behaviour

16 October 2018

David BrowneIt’s rare, but every now and then a personal grievance taken to the Employment Relations Authority ends up with a result that restores at least some faith in the process; a process which many employers feel is stacked against them. The determination in Smith v Muir is one of those times when a trip to the Authority ultimately went poorly for an employee. The matter may also have established grounds clarifying what it means to be communicative and constructive in maintaining the employment relationship.

On the face of it Smith v Muir is an all too familiar termination gone wrong under an invalid 90 day trial period. You know the story; the employee signs the employment agreement after starting work and the employer terminates the relationship under the trial period which of course is not valid unless the employee signs the agreement before they even enter the workplace the first day on the job.

That’s basically what happened here. The employer Muir hired a husband and wife team to be dairy farm 2IC and farm hand. When things didn’t work out primarily due to performance concerns the employer invoked the 90 day trial period he thought was good and terminated the Smith’s employment on two weeks paid notice. The dismissed employees were permitted to continue living in the farm house through the notice. The Smiths’ who weren’t happy about losing their jobs apparently swore at Muir and told him they would see him in Court.

If that had been the end of it then perhaps the termination would have resulted in a remedy for unjustified dismissal and hurt and humiliation along with lost wages. However that wasn’t the end of it and the Authority said even though the Smiths had been unjustifiably dismissed under a faulty 90 day trial period their conduct and contribution was of such a degree as to disentitle them to any remedy.

What happened was this; during the second month of employment the Smith’s son and the Muir’s boy were apparently chatting one day when the younger Smith said he had been to a whole lot of different schools. Twenty to be precise and that’s a lot under any circumstances and especially so when his dad had only 4 jobs in the past nine years, or so he claimed on his CV.

That piece of information was news to Muir. He looked into it further and eventually made contact with a previous employer who said the Smiths had worked for him (something they had left off their CV) and their employment had been terminated under a 90 day trial period (something else they had omitted). Hearing this Muir went back to the Smiths who were still on their two weeks paid notice and told them falsifying a CV is considered serious misconduct and even though he thought he now had grounds for instant termination he would “honour” the notice and accommodation arrangements. Two days later the Smiths raised a PG.

While the Authority correctly found the Smiths had been unjustifiably dismissed under an unsafe trial period the Authority member held the Smiths to account for their conduct pertaining to their knowledge of the validity of the trial period and misrepresentations on the CV. During the ERA investigation the Smiths acknowledged knowing the trial period was not safe. They didn’t mention anything about the faulty trial period at the time of dismissal saying it was not their responsibility. The Authority member found the Smiths had delayed signing the agreement in an effort to ensure the trial was not valid.

The Authority also found that in falsifying the CV the Smiths obtained a job they would not otherwise have been employed to undertake and didn’t have the skills to perform. The Authority described the conduct as “disgraceful” and “egregious” and in keeping with section 124 of the Employment Relations Act denied the Smiths a remedy.


David Browne | Solicitor


Legal Team


Diana Hudson | Managing Solicitor | 03 456 1804 | 021 816 469 |

David Browne | Solicitor | 03 456 1812 | 021 225 6938 |

Grant Walker | Advocate | 03 455 5165 |

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