Ricky Blackmore v Honick Properties Ltd

• Jurisdiction: New Zealand
• Judgment Date: 24 November 2011
• Date: 24 November 2011
• Docket Number: ARC 37/11
• Court: Employment Court

In the matter OF a challenge to a determination of the Employment Relations Authority

Between

Ricky Blackmore

Plaintiff

and

Honick Properties Limited

Defendant

[2011] NZEmpC 152

ARC 37/11

IN THE EMPLOYMENT COURT AUCKLAND

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.

Appearances:

Gregory Bennett, advocate for plaintiff

Erin Burke, counsel for defendant

JUDGMENT OF CHIEF JUDGE G L COLGAN

1 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.

Relevant facts

2 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.

3 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.

4 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.

5 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.

6 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.

7 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.

8 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.

9 Mr Blackmore responded to this formal offer of employment in a short email sent on 10 October 2010 saying:

It is with great pleasure I accept the position as Farm Manager on Waione Station/Worthington Farm. I have therefore given one month's notice as from today my last working day being Wednesday 10 ^th November 2010. The only thing to finalise will be the removal.

10 There is no suggestion either that Mr Blackmore was a member of a union that may have had a collective agreement with HPL or that HPL was a party to any collective agreement.

11 After working out a month's notice at his previous employment, Mr Blackmore and his family moved to HPL's Waimiha property on Friday 12 November 2010. On the following day, Saturday 13 November 2010, Mr Mathis came to the house and had a brief conversation with Mr Blackmore. There was no reference to an employment agreement during this meeting and, more particularly, Mr Mathis did not give Mr Blackmore any information about what HPL's written employment agreement would contain.

12 After settling into the new accommodation, Mr Blackmore began work at about 7 am on Monday 15 November 2010. This is the usual start time for farm managers in these circumstances and that is confirmed by the terms of the written agreement drawn up by the defendant.

13 Shortly after 8 am on that first day of work with HPL, Mr Blackmore met with Mr Mathis who gave him for the first time an intended employment agreement. 2 Mr Mathis was anxious to finalise this paperwork and to get on with showing Mr Blackmore around the farm properties with a view to bringing him up to speed with his management responsibilities. I accept Mr Blackmore's evidence, and reject Mr

Mathis's to the contrary, that the intended employment agreement was partially completed by Mr Mathis when it was first presented to Mr Blackmore. In addition to deleting alternative provisions and entering some details particular to the employer's operation, this lengthy form of employment agreement was largely pre- prepared by Federated Farmers. As to trial or probationary arrangements, the agreement contemplated that one of these would be specified by deleting the other.

Mr Mathis had deleted the alternative provision for a probationary period so that a 90 day trial period was stipulated for

14 There was no negotiation about the intended employment agreement. Mr Mathis simply pointed out to Mr Blackmore the essential contents of the agreement and got the latter to initial most of the changes that had been made to the template agreement in handwriting by Mr Mathis. Mr Mathis did not advise Mr Blackmore that he was entitled to seek independent advice about the intended agreement. Nor did he give him a reasonable opportunity to seek that advice. Clearly, also, Mr Mathis did not consider any issues that Mr Blackmore raised and respond to them, both because Mr Blackmore did not do so but also because he had no opportunity to seek independent advice about the intended agreement that may have raised for consideration such issues and responses to them.

15 There was no discussion between Mr Mathis and Mr Blackmore about the 90 day trial period included expressly in the agreement. Mr Mathis was anxious for Mr Blackmore to begin work. He told him that there was much to be done on the farm that day and conveyed to him the impression that the employment agreement should be signed so that Mr Blackmore could get on with farming work.

16 Mr Blackmore had relied upon the October exchange of correspondence between the parties about the essential contents of their employment agreement. Although there had been reference to a Federated Farmers form of agreement that would have to be signed, Mr Blackmore was not aware of the contents of this or, even if he had been, there is no suggestion that HPL may have wished to have had a probationary period as opposed to a 90 day trial period. No Federated Farmers form of agreement had been given to Mr Blackmore although...