The precise time at which Hamish Pogai signed his employment agreement, which included a 90 day trial period, was critical in the Employment Relations Authority’s determination to dismiss his claim of unjustifiable dismissal.

Mr Pogai was offered a job as a quality controller at the Mount Erin fruit packing packhouse near Hastings in December 2015. On 23 December 2015, Mr Pogai was emailed an employment agreement. It was the Company’s practice that paperwork is completed prior to commencing work but this did not occur in this case. Mr Pogai reported to work on 18 January 2016 and signed his employment agreement that morning. After 5 weeks of employment, the Company had performance concerns and dismissed Mr Pogai under the 90 day trial period clause.

Mr Pogai claimed that he had been unjustifiably dismissed and brought a claim before the Employment Relations Authority. The key issue to be determined by the Authority was whether or not Mr Pogai had commenced work before signing his employment agreement. This is because in order for a trial period clause to be valid it must be included in a written employment agreement signed by both parties at the start of the employment relationship. Otherwise, an employee is not a “new employee” as required by law.

During the Authority hearing, Mr Pogai claimed that he turned up for his first day of work around 8am but that he did not sign his employment agreement until approximately one hour after he commenced work. The Company, however, claimed that Mr Pogai arrived at around 7.45am and signed the agreement before he commenced work at 8am.

The Authority favoured the Company’s evidence largely due to inconsistencies in Mr Pogai’s evidence and the evidence of the Office Administrator that Mr Pogai’s signed employment agreement was on her desk upon her arrival at work at approximately 8am. The Authority accordingly concluded that the trial period clause was not invalidated and Mr Pogai was precluded from bringing a personal grievance for unjustified dismissal. This case illustrates how careful employers need to be when using a trial period. 20 minutes the other way and this dismissal would have been unjustified!

(SOURCE: Quigg Partners, 16 June 2017, retrieved from