Legal Updates

Employers can still be stung during trial periods


A recent decision from the Employment Relations Authority (Authority), Williams v Team One Limited [2022] NZERA 180, is an example of the Authority upholding the important objects of the Employment Relations Act 2000 (the Act) by acknowledging and addressing the inherent imbalance of power between those in employment relationships as well as promoting the enforcement of employment standards.



Mr Williams was employed as an Operations Manager at a Hamilton-based construction labour firm, Team One Limited (Team One) from 14 – 30 July 2021. Mr Williams reported to Mr Etchells (the sole director and shareholder of Team One).

Mr Etchells dismissed Mr Williams on the spot during his 90-day trial period after Mr Williams informed Mr Etchells that he did not want to be verbally abused by Mr Etchells, as had occurred on a number of occasions. Their employment agreement required three days’ notice (or pay in lieu of notice) of termination during his trial period.

Mr Williams was paid his first pay late, he was not paid for the two weeks he worked at Team One, and also he was not paid his annual holiday pay in his final pay (8% of his total gross earnings).

During the course of his employment, Mr Williams made a health and safety complaint to WorkSafe regarding a cover-up of a work related accident.  Mr Etchells emailed Mr Williams and told him he would not be paid unless he provided an apology that Mr Etchells could give to Worksafe regarding the complaint.

Mr Williams sought wage arrears as well as penalties for breaches of the Wages Protection Act 1983 (WPA), the Holidays Act 2003 (HA), and his employment agreement. He also sought costs.

Mr Etchells refused to attend mediation and then also failed to participate in any aspect of the Authority’s investigation process. As a result, the Authority determined Mr Williams claims on a “formal proof” basis.



The Authority determined that Team One owed Mr Williams almost $5000 in wage arrears for:

  • the hours worked but not paid;
  • the failure of the employer to give notice (or pay in lieu of notice) of termination; and
  • the failure of the employer to pay Mr Williams’ annual holiday pay entitlements.

On top of this, the Authority imposed total penalties of $6000 on Team One for breaches of the employment agreement, the WPA, and the HA. Of this, $4000 was awarded to Mr Williams for the harm he suffered and the remaining $2000 went to the Crown bank account.  The penalties imposed were said to reflect:

  • the nature of the breaches being both contractual and statutory in nature and Mr Etchells being aware of this;
  • the fact that Mr Etchells withheld payment to Mr Williams in order to improperly pressure him to withdraw a legitimate WorkSafe health and safety complaint;
  • the reason for all but one of the breaches (being the first breach involving the late payment of wages) being “reprehensible”;
  • that although the amounts involved in the breaches were at the lower end of the financial scale, Mr Etchells improper motivation for all but the first breach put the breaches into a more serious category; and
  • Mr Etchells doing nothing to mitigate the effect of the breaches – “There has been no remorse or contrition”.

Finally, Team One was also directed to pay $1500 towards Mr Williams’ legal costs and $71 for the reimbursement of the filing fee.

The case is a reminder that employers are not entitled to penalise an employee for raising legitimate health and safety concerns. It also demonstrates that employers may still face liability for their actions towards an employee during a trial period, even though the employee is not able to raise a personal grievance.

If you have a workplace issue you would like advice on, contact Jaesen, Ruth or Lucy.