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Building Apprentice Unjustifiably Dismissed Following Incident with a Nail Gun

Published 16 Feb 2024

Matthew Cooper (‘Mr Cooper’) was employed by NXT Level Construction Limited (‘NXT Level’) as an apprentice builder between 15 July 2022 until he was dismissed on 16 August 2022. Mr Cooper claimed that he was unjustifiably dismissed.

The background to Mr Cooper’s employment with NXT Level was that he responded to a job advertisement on Facebook and an informal work trial of a couple days was offered to him. Mr Cooper began working for NXT Level from 21 July 2022 under the informal work trial arrangement.

Mr Cooper was subsequently provided with an employment agreement on 24 July 2022 – the employment agreement was not signed and there was no discussion about a 90 Day Trial Period. The commencement date specified in the employment agreement was 25 July 2022. However, Mr Cooper performed work for NXT Level under the ‘informal trial’ from 21 July 2022. On 30 July 2022, Mr Cooper was involved in a verbal altercation whilst attending a job with the foreman.

Mr Cooper said that shortly after commencing work, the foreman was yelling at him. Matters escalated and Mr Cooper alleged the foreman approached him in an intimidating manner at which point he told the foreman if he didn’t back off that he would ‘put a nail through his skull’. Mr Cooper had his nail gun in possession at the time.

NXT Level sent correspondence to Mr Cooper following the incident, including notifying him that an HR consultant would be investigating what occurred, that he was suspended, etc. A final letter was later sent to Mr Cooper advising him that he had been dismissed under the 90 Day Trial Period.

The Employment Relations Authority (‘the Authority’) was required to determine whether Mr Cooper was dismissed under a valid 90 Day Trial Period. The Authority found that Mr Cooper commenced employment on 21 July 2022, but he was not provided with an employment agreement (which included a 90 Day Trial Period clause) until 24 July 2022.

On that basis, the Authority determined that Mr Cooper was already employed and therefore he was not a ‘new employee’ for the purposes of the 90 Day Trial Period – the trial period was therefore not valid. The Authority also found that NXT Level failed to give Mr Cooper the correct notice when terminating his employment – it paid him two weeks in lieu of notice, despite the notice period being four weeks . The Authority determined that Mr Cooper was unjustifiably dismissed.

Mr Cooper was awarded $8,000 in injury to feelings compensation (after a 20% reduction for his contributory conduct) and $1,952.32 in lost wages. Costs were reserved, but as the successful party Mr Cooper will also be entitled to a contribution to his legal costs as well.

Employer Takeaway: This case demonstrates the importance of ensuring compliance with the legal requirements associated with 90 Day Trial Periods. In this case the employer made the critical mistake of allowing the employee to start work before sending him the employment agreement agreement. An employee must not perform any work prior to entering into a 90 Day Trial Period – otherwise they are not considered a ‘new employee’ for the purposes of a 90-day trial period. Employers must always ensure they get a signed copy of an employment agreement back before an employee commences working.

For more information about 90 Day Trial Periods check out Employers Assistance's resources, or call us on 0800 15 8000.