Ricky Blackmore v Honick Properties Ltd
 NZEmpC 152
IN THE EMPLOYMENT COURT AUCKLAND
In the matter OF a challenge to a determination of the Employment Relations Authority
Gregory Bennett, advocate for plaintiff
Erin Burke, counsel for defendant
Preliminary issue concerning whether the plaintiff was entitled to bring a personal grievance for unjustified dismissal — plaintiff employed as a farm manager — offer of employment did not contain provision for 90 day trial period — one hour after commencing work plaintiff presented with employment agreement which contained trial period clause — agreement not negotiated and plaintiff not advised he was entitled to seek independent advice — whether plaintiff was an existing employee when asked to sign agreement and therefore not subject to trial period under s67A Employment Relations Act 2000 (when agreement may contain provision for trial period) — whether s63A (bargaining for individual employment agreement) had been breached and if so, what were appropriate remedies — meaning of employee for the purposes of s67A.
The issues were: whether the agreement had contained a trial period in compliance with s67A ERA; and whether the employment agreement had been bargained for unfairly under s63A ERA (bargaining for individual employment agreement) and if so, what were the appropriate remedies under s69 ERA (Remedies for unfair bargaining).
Held: When B executed the employment agreement containing the trial provision, B was an existing employee of Honic as set out in s67A(3) ERA (employee means an employee who has not been previously employed by the employer). By the special definition of employee in s67A(3) ERA, B was not an employee that was able to enter an agreement containing a trial period as set out in s67A(1) ERA. An employee employed previously included someone who has worked at some time in the past for the employer and included an existing or current employee. In accordance with the definition of employee in s5 ERA (interpretation) and s6 ERA (meaning of employee), B had become an employee of Honic on 10 October when he had been offered and accepted employment. At the very least, B had become an employee at 7am on 15 November when he had commenced work.
Employers wishing to use trial periods must ensure that such trials were mutually agreed in writing before a prospective employee became an employee. Trial periods must be provided to a prospective employee as part of the offer of employment. An employer could not lawfully require an existing employee to enter into a trial period in the course of current employment. An intending employee must have an opportunity to consider and take independent advice about an employment agreement. What the opportunity amounted to temporally depended on the circumstances of the case. An employer was not entitled in law to insist upon immediate execution of a form. B was given the agreement in an isolated rural area and it would have been several days before he could have obtained advice.
Honic had not given B the statutory opportunity to consider, take advice and discuss or negotiate the terms and conditions of the agreement as required by s63A ERA. It was no answer that B had signed a warranty that Honic had complied with its legal obligations when it had clearly not.
However, the Court could not make an order varying the agreement pursuant to s69(1)(b) ERA (remedies for unfair bargaining — cancelling or varying an agreement) or striking out the trial period provision under s69(1)(c) ERA (any other order Court thinks fit) without following the statutory procedure under s164 ERA (application to individual employment agreements of law relating to contracts) and the parties had to be directed to attempt in good faith to resolve the problem under s164(a)(ii) ERA. The Court would also have to be satisfied that any other remedy other than one under s69(1) would be inappropriate or inadequate pursuant to s164(d) ERA.
B was entitled to challenge the justification for his dismissal by personal grievance because when the agreement had been entered into he was an employee of Honic and therefore had been employed by it previously. Alternatively, if wrong, the trial period provision had been unfairly bargained for.
Direction to parties to go to mediation or further mediation to enable them to attempt to settle the merits of B's claim that he was dismissed unjustifiably.
This judgment, in a proceeding removed for hearing in this Court by the Employment Relations Authority, deals with the preliminary issue whether Ricky Blackmore is entitled to bring a personal grievance for unjustified dismissal. The defendant, Honick Properties Limited (HPL), says that Mr Blackmore was subject to a 90 day trial period and that his dismissal within this period disqualifies him from claiming that he was dismissed unjustifiably.
HPL owns and operates farms, several of which are in the Waikato and King Country regions, on which it has employees in a variety of positions. There is no dispute that at the relevant time HPL employed fewer than 20 employees. 1 Mr Blackmore is an experienced farm manager who, before his employment with HPL, was employed by another entity on another farm in the Whanganui district.
Mr Blackmore heard that HPL had a vacancy for a farm manager and he visited the two separate properties leased by HPL which together constituted the King Country farm for which it required a manager. Subsequently, arrangements were made for HPL's Steve Mathis to meet with Mr Blackmore and his wife at the Whanganui farm where he was then working. Mr Mathis was accompanied by his wife, Rachel Mathis, and the parties' discussions included whether one manager would be sufficient for HPL's purposes with Mr Blackmore taking the view, from what he knew, that some casual staff would also be required.
The parties disagree about whether there was discussion between Messers Blackmore and Mathis about whether the position would be subject to a 90 day trial period. Mr Blackmore's case is that he raised this matter and made it clear to Mr Mathis that he would not be interested in the position if it was subject to a 90 day trial period and that Mr Mathis then assured him that HPL would not require this. At that time, in early October 2010, Mr Blackmore was in secure employment as a farm manager and was confident that he could remain so for at least the following 18 months that his employer leased the land on which Mr Blackmore managed the farm in Whanganui. HPL's position, on the other hand, is that there was simply no discussion about a trial period.
I am inclined to accept the defendant's case on this point but it is not essential to decision of the case that this disagreement be determined however.
Messrs Blackmore and Mathis also disagree about whether, at this meeting, Mr Mathis offered Mr Blackmore employment. I am inclined to accept Mr Blackmore's version of this difference, although I consider that the most Mr Mathis did was to indicate the probability of an offer of employment. Again, resolution of this conflict is not necessary to the decision of the preliminary issue.
By letter dated 5 October 2010 addressed to Mr Blackmore, HPL formally offered him employment in the following terms:
I would like to formally offer you the position as Farm Manager on our Waimiha farms, in Waimiha in which we provide the following:
1. Base salary of $60,000 per annum
2. Tax free dog and tool allowance of $100/week.
3. A four wheeler motorbike, fuel and oil.
4. Start date 25 October 2010.
5. Reimbursement for all farm phone calls.
6. Relocation Costs of $700, (to be refunded if employment ends within a 12 month period).
7. Review after six months of employment.
You will need to provide the following:
1. Farming tools
2. Three working dogs
3. Vet costs of Dogs
A job description will be drawn up for your laying out the expectations while running this property. You will be working alongside [casual] staff and maybe a full-time shepherd in the future should it be required.
We look forward to having you onboard and if you have any queries please do not hesitate in calling me. If you are happy with the content of this letter, please sign below as acceptance of this offer.
Upon acceptance of this position a Federated Farmers Employment Contract will be filled out outlining the above conditions.
There was no reference to a 90 day trial period in this letter and indeed the offer of a —review after six months of employment‖ confirmed that Mr Blackmore's work performance would be reviewed after the expiry of that period. The other notable feature of the letter of offer is the proposal that a —Federated Farmers employment contract‖ would be filled out —outlining the above conditions‖ —upon acceptance of this position‖. No form of Federated Farmers employment contract was enclosed with the offer and Mr Blackmore had not ever seen, or been subject to, such a contract. Mr Mathis confirmed in evidence that New Zealand Federated Farmers employment agreement templates are only available to members of that organisation as I infer HPL was....
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