Brad Capper v CJS Construction [2023] NZERA 314

A practical summary of an Employment Relations Authority (ERA) unjustified dismissal decision, with the full PDF embedded below.

What happened

This case involved a short employment relationship. The employee was engaged as a carpenter by a small construction business, and the employment ran for only about one month.

The relationship ended after the employee took time off and communication broke down. The employer attempted to contact the employee but received no reply, and then told him by phone that his employment was terminated.

A key issue was whether the employer could rely on a 90 day trial period. The Authority found the required written trial period agreement was not in force because it was not signed by the employee before he started work.

Because the trial period was not effective, the Authority assessed justification under the standard unjustified dismissal framework. The Authority accepted the employer had concerns about performance and communication, but found the dismissal process itself was not what a fair and reasonable employer could have done in the circumstances.

The Authority also found the employee contributed to the situation by failing to engage with the employer's attempts to contact him. The Authority assessed contribution at 50%, which reduced the level of remedies.

In terms of remedies, Compensation was set at $4,000. Wages in lieu of notice were ordered at $1,520. No lost wages were awarded.

Outcome and remedies

The personal grievance for unjustified dismissal was upheld. The employer could not rely on a 90 day trial period because the written agreement was not signed before the employee started work. Compensation was awarded in the sum of $4,000 for hurt and humiliation (after a 50% contribution reduction). The employer was also ordered to pay $1,520 as wages in lieu of notice. The Authority declined to award lost wages. Costs were left open for application under the Authority's usual timetable.

• Compensation (hurt and humiliation): $4,000
• Wages in lieu of notice: $1,520
• Lost wages: Declined
• Costs: Any application by either party is to be made within 14 days of the date of this determination, and any reply is to be made within a further 14 days of the application.

Read the full ERA determination (embedded)

If the embedded PDF does not load on your device, use the button below to open it in a new tab.

Mobile / tablet tip: Some browsers do not display embedded PDFs reliably. Use the "Open" button above.

Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.