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My partner has been dismissed under terms of the 90 trial…

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My partner Maria has...

My partner Maria has been dismissed under terms of the 90 trial period.I believe the trail should not have been in place - Maria has worked for them in the past for two days a week for around three months for unpaid work experience. During this time, work was carried out which was integral to the business that a full-time employee would have otherwise completed. They received an economic benefit from the carried out work.

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

New zealand

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

Full time

Submitted: 10 months ago.Category: New Zealand Law
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9/28/2017
Solicitor: Chris The Lawyer, Lawyer replied 10 months ago
Chris The Lawyer
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Solicitor: Chris The Lawyer, Lawyer replied 10 months ago

This can be a difficult issue where someone is exploited. In addition to the question of whether she should get paid (and a trial should not be for three months working two days a week), she should also have specifically sign an employment contract with a specific clause stating she was on a trial. So there are two issues, the first that she should have been paid, and the second whether they have complied with the statutory requirement about written contracts and written consent to a trial period

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Customer reply replied 10 months ago
The first employment period - about 4 years ago she worked there unpaid for work experiance for thee months, two days a week unpaid. This was under verbal agreement, there was no contract.
Second employment period (now) - there is a full-time contract in place with a trail period clause in it that is correctly signed. Is that trial period valid considering she has worked for the company before?
Solicitor: Chris The Lawyer, Lawyer replied 10 months ago

If there has been a break in employment over four years, then a trial period may be reasonable.The issue will be whether she was actually employed for the unpaid work experience. Once you have been employed, a trial period cannot be later included.

67A When employment agreement may contain provision for trial period for 90 days or less

(1) An employment agreement containing a trial provision, as defined in subsection (2), may be entered into by an employee, as defined in subsection (3), and an employer.

(2) Trial provision means a written provision in an employment agreement that states, or is to the effect, that—

(a) for a specified period (not exceeding 90 days), starting at the beginning of the employee’s employment, the employee is to serve a trial period; and

(b) during that period the employer may dismiss the employee; and

(c) if the employer does so, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.

(3) Employee means an employee who has not been previously employed by the employer.

It would seem pretty likely that she was employed, even if it was unpaid, because two days a week for three months is a substantial period to be with the employer. It is probably unfair that she was not paid for that earlier experience, but it may be too late to claim that. But under the section which I have pasted above, the trial period may not be valid because she was previously employed. This means the dismissal is unfair and can be challenged by a personal grievance claim for unfair dismissal

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Customer reply replied 10 months ago
My biggest concern is not pay for her work four years ago so thats fine. I would like to know how I can establish the fact that she was an employee four years ago so I can claim that her recent dismissal was unfair. Do you think this is a winable case? Do you need more information?
Solicitor: Chris The Lawyer, Lawyer replied 10 months ago

The issue will be proving that the work trial was in fact previous employment. I think it is certainly arguable. You can always take this matter to an employment mediation, where you will get a good indication as to whether this case should settle. That is fairly low cost for you and you don't necessarily need a lawyer. So it is worth taking to mediation anyway in my view

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Customer reply replied 10 months ago
Can you please tell me what points you would argue to show that her work experience was employment? Mediation sounds like a good idea.
Solicitor: Chris The Lawyer, Lawyer replied 10 months ago

The time that she spent, the three months at two days per week, appears much greater than just work experience, which is usually a few days or a week. The fact that she was doing the work of paid staff would also help

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