Thuy v Huynh [2025] NZERA 74
A purported 90-day trial did not protect the employer because the notice requirement in the trial clause was not complied with. The ERA then found the dismissal itself unjustified, including because the employee was entitled to seek advice about her employment rights.
At a glance
- Citation: [2025] NZERA 74
- Registry: Wellington
- Authority member: Claire English
- Investigation meeting: 9-12 September 2024
- Determination: 14 February 2025
- Outcome: Unjustified dismissal and disadvantage established; 90-day trial protection unavailable.
Why the 90-day trial protection failed
The employment agreement contained a trial clause requiring one week's notice or payment in lieu. The termination letter said the employer elected to pay notice in lieu, but the money was not actually paid to Ms Thuy. Instead, her final pay was directed into the employer's own bank account on the basis of an asserted offset.
Trial provisions remove ordinary personal-grievance protections and are interpreted strictly. The Authority held that payment not made to Ms Thuy was not payment of the required notice. The employer therefore lost the protection that might otherwise have prevented an unjustified-dismissal grievance.
Dismissal for seeking employment advice
The employer said Ms Thuy was being dismissed for "going against" her and connected that concern with employees speaking to an employment advocate or discussing a public meeting about employment rights. The Authority held Ms Thuy was fully entitled to seek advice and committed no breach of her employment obligations by contemplating doing so. The termination was substantively unjustified and the required fair process had not been followed.
Unjustified disadvantage
The Authority also upheld disadvantage aspects of the claim, including failures relating to wages and terms of employment. Allegations of poor performance raised after dismissal did not retrospectively justify the termination.
Remedies
- Lost remuneration: $4,745.60 gross, representing four weeks' wages.
- Compensation: $20,000 for hurt and humiliation.
- Penalty: $2,500, directed to be paid to Ms Thuy.
- Contribution: no reduction was applied to these remedies.
- Costs: reserved.
Why the case matters
- 90-day trial clauses require strict compliance, including compliance with the contractual notice mechanism.
- An employer cannot treat an employee's attempt to obtain employment-law advice as misconduct justifying dismissal.
- Post-dismissal performance criticisms do not replace the justification and process required at the time of dismissal.
Read the full ERA determination (embedded)
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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.
