Shania Mortimer v Auckland Steam 'N' Dry Limited [2025] NZERA 808

A detailed plain-English summary of an Employment Relations Authority (ERA) determination. The full determination is embedded at the end of this page. This summary is not legal advice.

Story in plain English

This determination is a useful reminder that a 'trial period' is not a free pass. If the clause is not drafted correctly, the employer loses the statutory protection and must justify the dismissal under the usual test.

Ms Mortimer started as an Office Administrator on 29 July 2024. She said it was her first office job and she received essentially no structured training or induction.

About three weeks later, she was dismissed by letter (sent on 16 August 2024). The letter referred to performance discussions and concerns, but she told the Authority those discussions had not happened and she did not understand what the letter was referring to.

The employer also did not meet with her before the dismissal letter was sent, and the evidence recorded a dispute about notice and whether she was allowed to work out her notice period. A complaint was later raised which was relied on to stop her working out notice.

On the legal issues, the Authority found the trial period clause was invalid because it did not include the required statement that an employee dismissed in the trial period cannot bring a personal grievance. Because the clause did not meet s 67A, the employer could not rely on s 67B to block an unjustified dismissal claim.

That meant the employer had to justify the dismissal. The Authority found significant process failures: no information provided to the employee, no chance to respond, and no compliance with the minimum procedural fairness requirements in s 103A(3).

On substance, the employer did not provide evidence to support its claim that Ms Mortimer was unsuitable. The Authority considered a fair and reasonable employer would normally train and support a new employee, give feedback, and follow a fair process before dismissal.

The employer had filed a statement in reply but then largely disengaged from the Authority process and did not attend the Investigation Meeting. The case was decided on the evidence presented by Ms Mortimer.

The unjustified dismissal grievance succeeded. The Authority also dealt with wage arrears, interest, holiday pay, KiwiSaver contributions and record-keeping issues, including discrepancies between payslips and earnings information held by IRD.

Key facts

• Ms Mortimer was employed as an Office Administrator and started work on 29 July 2024. It was her first office role and she said she received no structured induction or training.
• On 16 August 2024 (after about three weeks) she was sent a dismissal letter stating it did not make sense to continue with the remainder of a three-month trial. The letter referred to performance concerns, but Ms Mortimer said those discussions had not occurred.
• Her agreement provided for four weeks' notice. After she asked for contractual notice, the employer tried to reduce notice to one week and then stopped her working out notice (she worked one day, 19 August 2024).
• The employer did not provide wage/time records or holiday/leave records when requested, and there was a discrepancy between payslips and earnings reported to IRD.
• The employer filed a statement in reply but then largely disengaged: it did not attend case management and did not attend the Investigation Meeting on 5 December 2025.

What the Authority found

• Trial period: the clause in the employment agreement was invalid because it did not include the required statement that an employee dismissed during the trial period cannot bring a personal grievance (s 67A). The employer therefore could not rely on s 67B to bar an unjustified dismissal grievance.
• Process: the dismissal came 'out of the blue'. The Authority found the employer did not meet good faith obligations (providing information and a chance to comment) and did not meet the minimum procedural fairness tests in s 103A(3).
• Substance: the employer produced no evidence supporting its claim that Ms Mortimer was unsuitable. The Authority noted a fair and reasonable employer would normally train/support a new employee (particularly one in a first office role) and give feedback before dismissal.
• Outcome: the employer could not establish the dismissal was justified, and the unjustified dismissal grievance succeeded.

Orders and payments

• $30,087.30 gross, payable within 28 days, made up of:
• $3,691.94 wage arrears.
• $245.86 interest on wage arrears up to the date of determination.
• $13,056.00 actual lost remuneration (to 20 December 2024 when alternative work was obtained).
• $201.60 employer KiwiSaver contribution (CEC) to be paid to IRD for onward payment to the KiwiSaver provider.
• $570.34 holiday pay arrears plus CEC on that holiday pay.
• $10,000.00 distress compensation (humiliation, loss of dignity, injury to feelings).
• $2,250.00 contribution towards legal costs.
• $71.56 reimbursement of the filing fee.
• Ongoing interest ordered on $3,937.80 (wage arrears plus interest to 15 December 2025) from 16 December 2025 until paid.
• Director enforcement: Mr Stephens (as sole director) was ordered to take steps to ensure payment; if the company could not pay, he had to explain why and personally pay any shortfall within 28 days.
• IRD/KiwiSaver corrections: Mr Stephens was ordered to correct inaccurate pay information provided to IRD and ensure correct KiwiSaver contributions were remitted for Ms Mortimer's benefit.

Note: the determination uses a mix of "gross" amounts and specific tax/KiwiSaver directions. Always check the PDF wording for the final accounting treatment.

Practical takeaways

• A trial period clause must strictly comply with s 67A. If it does not, the employer cannot rely on s 67B to block an unjustified dismissal personal grievance.
• Even in short employment, dismissal still needs basic procedural fairness: raise concerns, provide relevant information, allow response, and investigate properly.
• If performance is the issue, the Authority expects training, feedback, and a fair chance to improve - especially for a new employee in a first role.
• Keep wage/time and holiday/leave records and provide them when requested; failing to do so can create adverse inferences and additional orders.
• Non-engagement with the ERA process does not make a case go away - it usually makes the outcome worse.

Read the full ERA determination (embedded)

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