Jennifer Jacobsen v Cube Innovations Limited [2026] NZERA 356

This Employment Relations Authority (ERA) determination concerns Jennifer Jacobsen, who was employed by Cube Innovations Limited in a part-time marketing consultant role. Cube dismissed her by email after only a very short period of work and attempted to rely on a 90-day trial period. The ERA found the trial period did not protect Cube because Cube failed to give the contractual notice required by the employment agreement and, on the balance of probabilities, the agreement was signed after Ms Jacobsen had already started work. The dismissal was unjustified. Cube also unjustifiably disadvantaged Ms Jacobsen by failing to provide written reasons for dismissal when requested. Cube was ordered to pay $2,436 gross lost wages, $15,000 compensation, and compulsory employer KiwiSaver contributions on the lost remuneration. Costs were reserved. The full determination is embedded at the end of this page.

The short point

Cube tried to treat this as a simple trial-period termination. It was not. Even though Ms Jacobsen had received the proposed employment agreement, had time to seek advice, and understood the trial period clause, Cube still had to comply strictly with the legal and contractual requirements for relying on that clause.

Cube failed on two important points. First, it did not give Ms Jacobsen the three days' notice required by the employment agreement and did not pay her in lieu of that notice. Secondly, the ERA found it was more likely than not that the employment agreement was signed after Ms Jacobsen had already started work on her first day. Either point created a serious problem for Cube's reliance on the trial period.

Once the trial period protection fell away, Cube had to justify the dismissal under section 103A of the Employment Relations Act 2000. It could not do that. Ms Jacobsen was dismissed abruptly by email, with no meaningful warning, no explanation of performance concerns, no opportunity to respond, and no fair process.

Background

Cube Innovations Limited sells, rents and installs portable buildings, including offices, ablution blocks and changing rooms. David Etchells was Cube's sole director. He already knew Ms Jacobsen through a friendship with her mother.

In late January 2025, Mr Etchells emailed Ms Jacobsen about ideas for growing Cube's portable toilet and portable building business nationwide. Ms Jacobsen lived in New Plymouth while Cube was based in the Waikato. Mr Etchells knew this would be an unusually long commute for a one-day-per-week role. He also knew Ms Jacobsen had an existing full-time café job and that the Cube role would be her first professional office-type role.

Ms Jacobsen travelled to Hamilton on 3 February 2025 to meet Mr Etchells. Later that day, he emailed her an outline of the job, pay and allowances. The proposed arrangement included an hourly rate of $29, travel-related payments for the New Plymouth to Hamilton journey, accommodation support, and meal allowances.

On 12 February 2025, Cube sent Ms Jacobsen the proposed individual employment agreement. The agreement identified 17 February 2025 as the commencement date and included a 90-day trial period clause. The clause said employment could be terminated during the trial period on three days' notice and that Cube could place Ms Jacobsen on garden leave during some or all of that notice period.

Ms Jacobsen sent the agreement to her father, an experienced HR professional, for advice. The ERA accepted that she had the agreement before signing it, had enough time to seek advice, and understood that the trial period clause was in the agreement. Those points helped Cube, but they were not enough to save what happened later.

The disputed signing sequence

Ms Jacobsen travelled from New Plymouth to Hamilton on 16 February 2025. Cube paid her travel time and vehicle-related allowance and also paid a private accommodation allowance, even though she stayed with her sister. Her first day at Cube's office was 17 February 2025.

The parties disagreed about the sequence of events that morning. Ms Jacobsen said she arrived, was shown to what would be her desk, showed work she had already begun on a spreadsheet, logged into her computer, and started converting that file before signing the agreement about an hour later. Mr Etchells said the agreement was signed first because he knew the trial period would only be valid if the agreement was signed before work started.

The ERA preferred Ms Jacobsen's version on this point. It found it was more likely than not that the agreement was signed at least an hour after she first started work, following an induction, a site tour, and a period of work involving a spreadsheet. That mattered because a trial period must be agreed before the person becomes an employee and before work starts.

The ERA did not accept that Ms Jacobsen's journey from New Plymouth to Hamilton was itself work for trial-period purposes. Although Cube paid her for travel time and allowances, the substance of what she was doing was travelling to the place from which her duties would be performed the next day. She was not performing work tasks for Cube during that journey.

What happened before the dismissal

Ms Jacobsen worked at Cube's office on 17 February 2025. She did not work the following Monday, 24 February 2025, but worked again on 3 March 2025. On that day, her work largely involved cold calling competitors to obtain information about their pricing, marketing and sales approach.

Ms Jacobsen said she struggled with that task because she felt she had to misrepresent herself to obtain information from competitors. From Cube's perspective, Mr Etchells considered that problems were already obvious. He decided to end Ms Jacobsen's employment the next morning.

On 4 March 2025, Mr Etchells emailed Ms Jacobsen to say things were not working out and that they would finish up. When she asked what that meant, he replied that Cube would not proceed with the employment offer and would terminate it. The ERA treated that as a summary dismissal on 4 March 2025.

The trial period failed because Cube gave no notice

The ERA referred to the strict approach to trial periods and to cases including Smith v Stokes Valley Pharmacy, Blackmore v Honick Properties, Roach v Nazareth Care Charitable Trust, and Ioan v Scott Technology NZ Ltd. The practical point is straightforward. If an employer wants the protection of a trial period, it must comply with the statutory requirements and the notice requirements in the agreement.

The Cube agreement required three days' notice. Mr Etchells accepted that Cube did not provide Ms Jacobsen with that notice and did not pay her in lieu. He said that requirement had been overlooked because the arrangement was unusual. The ERA held that deficient notice is not lawful notice. That failure meant the trial period could not protect the dismissal.

The trial period also failed on timing

The ERA also resolved the factual dispute about when the agreement was signed. It found that Ms Jacobsen had already started work before signing. That was another problem for Cube because the trial period must be agreed and signed before employment starts.

Although the ERA had already found the no-notice issue enough to invalidate Cube's reliance on the trial period, it still addressed the signing issue for completeness. Its finding reinforces the usual rule: do not let the employee start induction, log into systems, complete work, attend a shift, or perform duties before the agreement is signed if the employer wants a trial period to apply.

Unjustified dismissal

Because the trial period was not available, Cube's dismissal decision had to be tested under section 103A of the Employment Relations Act 2000. That required the ERA to ask whether Cube's actions, and how Cube acted, were what a fair and reasonable employer could have done in all the circumstances at the time.

The ERA described the dismissal as unexpected and perfunctory. Ms Jacobsen had not been told there were concerns about her performance. She had not been told what those concerns were. She was not given an opportunity to respond or improve. There was no genuine consideration of her explanation because no process had been run.

Those were not minor procedural defects. They were fundamental deficiencies. The ERA determined that Cube unjustifiably dismissed Ms Jacobsen on 4 March 2025.

Unjustified disadvantage: training claim failed, written-reasons claim succeeded

Ms Jacobsen also claimed unjustified disadvantage. She said Cube failed to provide proper training and support and then failed to provide reasons for ending her employment.

The training claim did not succeed. Ms Jacobsen described receiving only a basic induction before being left to cold call competitors. Mr Etchells said she had received on-the-job training and support, including observing cold calls and being provided with a script. Having regard to Cube's resources, Ms Jacobsen's very short tenure, and the training that had been provided, the ERA held that the training was reasonable in the circumstances.

The written-reasons claim did succeed. Section 120 of the Employment Relations Act allows an employee who has been dismissed to request a written statement of reasons within 60 days. The employer must then provide that statement within 14 days. There is an exception where a valid trial period applies, but that exception did not assist Cube because the trial period had failed.

Cube did not provide written reasons when requested. Mr Etchells also refused to provide them during the ERA investigation meeting. The ERA found that failure deprived Ms Jacobsen of a statutory right to know why she was dismissed. That was an unjustified disadvantage.

Lost wages

Ms Jacobsen sought three months' lost wages. The claim was calculated on 14 weeks at six hours per week at $29 per hour, producing $2,436 gross. Cube argued she had not suffered loss because she continued working in her café role four days per week.

The ERA rejected Cube's argument. Ms Jacobsen lost the Cube work because of Cube's unjustified dismissal. The fact that she retained her separate café job did not mean she had suffered no loss from losing the additional one-day-per-week Cube role. She was awarded $2,436 gross lost remuneration.

Compensation

Ms Jacobsen sought $15,000 compensation for hurt and humiliation. The ERA accepted her evidence about the personal impact of the dismissal. She remained visibly upset and confused by her treatment at the investigation meeting. She felt embarrassed because she had told family and friends about the job, and her self-confidence and sense of worth had been badly shaken.

The ERA awarded $15,000 compensation under section 123(1)(c)(i). The award was broken down as $13,000 for unjustified dismissal and $2,000 for unjustified disadvantage.

KiwiSaver lost benefit

Ms Jacobsen also sought the employer KiwiSaver contributions she would have received if she had not been unjustifiably dismissed. The ERA accepted this as a lost benefit. Cube was ordered to pay its compulsory employer KiwiSaver contribution, calculated under the KiwiSaver Act 2006, based on the $2,436 lost remuneration award.

No contribution reduction

Section 124 required the ERA to consider whether Ms Jacobsen contributed to the situation giving rise to her personal grievances. The ERA found she did not. Cube had not raised performance or conduct concerns with her before dismissal. She attended work as required and did what was asked of her. No reduction was applied to her remedies.

Penalty declined

Ms Jacobsen sought a penalty for breach of good faith. The ERA declined to impose one. It accepted Cube's dismissal was unjustified, but held that the high threshold for a penalty was not met. The Authority considered Mr Etchells wrongly but genuinely believed Cube could rely on the trial period. The conduct was not proven to be intended to undermine the employment relationship.

Why this case matters

This determination is useful because it shows that trial-period compliance is not just about having the right clause in the agreement. Cube had a written trial period clause and Ms Jacobsen had time to seek advice. But Cube still failed because it did not give notice and because the agreement was probably signed after work had already started.

The case also shows why employers should not treat trial periods as a licence to be careless. A trial-period dismissal may avoid the need to justify the reasons for dismissal only if the trial period is valid and correctly used. If it is not, the ordinary justification test applies, and an abrupt dismissal without process will usually be difficult to defend.

The written-reasons finding is also important. Where a trial period is invalid, an employer cannot rely on the trial-period exception to avoid providing reasons under section 120. If an employee requests written reasons within time, the employer must provide them.

Practical takeaways

• Sign before work starts: the employment agreement must be signed before the employee performs work, attends induction as part of work, or starts duties.
• Do not confuse travel with work: travel to the workplace may not itself be work, even if compensated, but the safest approach is still to have the agreement signed before any paid activity occurs.
• Comply with notice: if the trial clause says three days' notice, give three days' notice or pay in lieu if the agreement permits it.
• Do not dismiss by surprise email: if the trial period fails, the employer will need to justify the dismissal under section 103A.
• Respond to section 120 requests: an employee dismissed outside a valid trial period is entitled to request written reasons.
• Keep evidence of signing sequence: employers relying on trial periods should keep clear records showing when the agreement was signed and when work started.
• Training claims are fact-specific: limited or informal training is not automatically an unjustified disadvantage, especially in a small business and very short employment period.
• Separate jobs can still mean loss: an employee who keeps another job can still recover lost wages for the job they were unjustifiably dismissed from.

Read the full ERA determination (embedded)

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