A recent case in the Employment Relations Authority
Parikshit v James Richardson (NZ) Limited looked at the
issue of whether an employee had been provided a reasonable
opportunity to obtain independent advice before signing his
employment agreement and the impact on the validity of the trial
period if he had not.
The case illustrates the importance of ensuring that all
pre-employment minimum requirements are checked and complied with
before the employee commences work subject to a trial period.
Mr Parikshit was employed as a 3IC at JR Duty Free. As part of
the pre-employment engagement process and 5 days out from his
commencement date Mr Parikshit was emailed relevant employment
documentation by the employer's recruitment consultant
following an interview at which Mr Parikshit was verbally offered a
job. This included documents such as forms for a criminal history
check, tax code declaration and KiwiSaver information.
The following day the HR department sent Mr Parikshit the
company's letter of offer and the intended employment agreement
(which included a 90 day trial period). The email sent with the
attachments referred to the attachments being a letter of offer,
the employment agreement and schedule setting out the job
description and remuneration details. The email also outlined the
steps to confirm acceptance; either by return email or by sending
back the signed agreement before his commencement date. Mr
Parikshit did neither and turned up to his first day of work with
all documents except the signed employment agreement. HR were alive
to the need to have a signed agreement from Mr Parikshit before he
commenced work and arranged a private space and 30 minutes for him
to review the employment agreement.
Mr Parikshit took the opportunity to review the agreement and
when asked whether he had any questions about the terms of his
employment before signing it, answered, "no", signed the
agreement and commenced work. He was dismissed 87 days later and
raised a personal grievance in relation to the dismissal.
There was no discussion between the parties about whether Mr
Parikshit had received the earlier communication attaching the
employment agreement or whether he had obtained any advice on its
terms. The employer assumed that because Mr Parikshit had turned up
with all other documents that he had simply forgotten to sign the
employment agreement and the signature was merely a formality.
The Authority dealt with the preliminary issue of whether the
employer could rely on the trial period to dismiss Mr Parikshit.
The focus of the Authority's enquiry was whether Mr Parikshit
had been provided with a reasonable opportunity to obtain
independent advice on the intended agreement before signing it and
Despite evidence that the employer's email attaching the
letter of offer and employment agreement had been successfully sent
and evidence that Mr Parikshit had received and responded to early
email communications from the company, the Authority determined
that Mr Parikshit had effectively only been given 30 minutes prior
to commencing employment to consider his terms of employment. It
held this did not meet the requirement to provide an employee a
reasonable opportunity to obtain independent advice and as a result
the trial period was therefore invalid.
The Authority believed that the appropriate course of action in
the circumstances would have been to postpone Mr Parikshit's
start date so that he had a reasonable opportunity to obtain
This case is another example of the strict approach adopted by
the Authority and Court to trial periods and compliance with
statutory minimum requirements for trial periods to be valid. It
also sounds a warning to those with responsibility for ensuring
minimum requirements relating to employment agreements are met. If
in doubt - check and double check.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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