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 commencing work.
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 independent advice.
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.
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