Briar Kennedy v Adulto HR Limited [2026] NZERA 537

Adulto HR Limited believed Briar Kennedy was employed on a 90-day trial, but her employment agreement contained no trial provision and was not given to her until after she started work. Adulto then purported to extend the trial into a probationary period and dismissed her after 97 days. The Employment Relations Authority found there was no valid trial or probationary period, the qualification and performance grounds did not justify dismissal, and the decision was predetermined. Adulto was ordered to pay $14,900 gross lost remuneration and $16,000 compensation.

Employment and intended progression

Ms Kennedy began work on 24 February 2024 as a bartender. The intention was that she would complete the Licence Controller Qualification (LCQ) and obtain a Manager's Certificate before progressing into a duty-manager role.

Adulto sent her the employment agreement on 26 February, two days after she started work, and she signed it on 28 February. The accompanying offer email said the agreement contained a 90-day trial period. It did not. The agreement contained neither a trial provision nor a probationary-period clause.

Employment initially went well but deteriorated quickly. Adulto raised a broad range of concerns at a progress-review meeting on 3 May 2024. The review document purported to extend the trial period “on probation” for four weeks so Ms Kennedy could obtain her qualifications and address the concerns.

After a difficult shift on 30–31 May, Adulto called Ms Kennedy to another meeting and terminated her employment. It later said the principal reason was her failure to obtain the LCQ and meet essential contractual requirements, although the contemporaneous communications relied more generally on poor performance.

There was no valid trial period

Adulto acknowledged an administrative error in omitting the trial clause but argued the offer email, discussions before employment and the parties' subsequent conduct showed that a trial had been agreed. The Authority rejected that position.

A statutory trial provision must be a written provision in the employment agreement and must contain the required terms. Verbal discussions and an offer email saying the conditions were “outlined in the agreement” could not substitute for a compliant clause that was not there.

Even if the agreement had contained the necessary wording, the trial would still have been invalid because Ms Kennedy had already started work before she received and signed it. The legislation requires the trial agreement to be entered into before the employee has previously been employed by that employer.

Adulto also could not extend the supposed trial. The legislation does not permit a trial period to be extended beyond 90 days, and Ms Kennedy's termination meeting occurred 97 days after her employment began.

There was no probationary period either

Adulto's progress-review document and termination letter referred to an extended trial or probationary period. But the employment agreement did not contain a probationary clause, and Adulto's handbook said the details of any probationary period would be in the agreement.

The Authority held that probation could not be implied or created retrospectively simply because Adulto later wanted to rely on it. In any event, a probationary period would not have removed Adulto's obligation to justify the dismissal under section 103A of the Employment Relations Act 2000.

The LCQ issue did not justify dismissal

Adulto argued Ms Kennedy had not obtained the LCQ required for progression to duty manager. The Authority found this was not the real principal reason communicated at dismissal and, in any event, could not justify terminating her employment.

The agreement set no deadline for obtaining the qualification. The offer described a gradual progression from bartender to duty manager, and Adulto had not clearly communicated when the LCQ had to be completed. Ms Kennedy had taken active steps through Work and Income to arrange payment and enrolment, but payment delays meant she could not attend the May course and instead secured a June date.

If Adulto regarded the timing as critical, a fair and reasonable employer would have communicated a deadline, explained the consequences, or arranged payment for an earlier course. Adulto did none of those things.

The performance process was inadequate

Adulto did not give Ms Kennedy advance notice of the many concerns raised at the 3 May meeting. It presented them in rapid succession, did not implement a meaningful performance improvement plan, set no measurable targets, arranged no regular reviews, and provided minimal support or guidance.

The written review also did not warn Ms Kennedy that failure to improve could result in dismissal. Adulto argued that risk should have been obvious from the purported trial or probation, but the Authority held that a fair employer must communicate possible consequences clearly rather than expect the employee to infer them.

Complaints from contractors influenced the decision but were not put to Ms Kennedy before dismissal. At the termination meeting she was told complaints existed but was not given their substance or the complainants' identities. She could not respond meaningfully to information she had never seen.

Adulto also assessed Ms Kennedy against duty-manager standards before she had completed the agreed transition into that role. It could not fairly dismiss her because she had not yet reached a standard without first stating when that standard had to be reached and what support would be supplied.

The dismissal was predetermined

Before the final meeting, Ms Kennedy's manager had told a director that she was at her “wits' end” and could no longer deal with the situation. The manager did not attend the dismissal meeting but remained named as a decision-maker in the termination letter.

At the meeting, Adulto told Ms Kennedy it no longer had a role for her before explaining the reasons. It did not present provisional concerns, invite a response, adjourn, or reconsider. The clear purpose was to communicate an outcome already reached.

The Authority concluded that Adulto had no valid basis to dismiss Ms Kennedy for failure to obtain the LCQ or for broader performance concerns, and it had not followed a fair process. The dismissal was unjustified.

Lost remuneration and compensation

Ms Kennedy sought lost wages from the end of her paid notice period until she began temporary employment in December 2024. She consistently applied for work and reasonably mitigated her loss. The Authority exercised its discretion to award the full 25-week period claimed.

Although her agreement guaranteed at least 25 hours at $25 per hour, Ms Kennedy calculated her loss using her lower average weekly earnings of $596. The Authority adopted her figure and awarded $14,900 gross.

The dismissal caused migraines, vomiting, stress-related chest pain and hyperventilation. Ms Kennedy became exhausted, withdrew socially and stopped responding to loved ones for a period. The Authority assessed the harm as moderate and awarded $16,000 compensation. Adulto had not substantiated blameworthy conduct by Ms Kennedy, so no contribution reduction was made.

Why this case matters

Kennedy v Adulto HR illustrates several independent failures that can invalidate reliance on a trial period. The required wording was absent, the agreement was signed after work began, the employer tried to extend the period beyond 90 days, and it later attempted to characterise the extension as probation.

The decision also confirms that labelling concerns as performance issues does not justify dismissal without clear standards, support, measurable expectations, warning of the consequences, disclosure of the information relied on, and genuine consideration of the employee's response.

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