Blackmore v Honick Properties Limited  NZEmpC 152
In November 2011 the Employment Court offered some further guidance on what employers must do in order to engage an employee in a lawful trial period. The Employment Court decision found that Mr Blackmore was not barred from bringing a personal grievance for unjustified dismissal against his former employer, despite an apparent trial period provision in his signed individual employment agreement.
Mr Blackmore was offered a position in a letter on 5 October 2010 which made no reference to the 90 day trial period, and after some thought Mr Blackmore accepted the position by email on 10 October 2010. Mr Blackmore began work on 15 November 2010 at 7 am and signed an Individual Employment Agreement shortly after commencing work. Mr Blackmore signed the employment agreement, acknowledging that he had the opportunity to take independent advice, however this was never the case. In late January 2011 Mr Blackmore's employment was terminated pursuant to the trial period.
The Court held that that when Mr Blackmore signed his employment agreement he was actually an existing employee of Honick. Mr Blackmore became an employee on acceptance of Honick's offer as a "person intending to work", or alternatively at the very latest when he began work at 7.00 a.m Monday 15 November. As trial periods are only available for new employees and not existing ones, Mr Blackmore was not barred from bringing a personal grievance.
This decision is a salient remainder to all employers of the need to take care when implementing and relying on trial periods.
Trial periods in employment agreements must be provided to prospective employees at the same time and as part of the making of an offer of employment. To ensure a robust process make acceptance of the offer and commencement of employment conditional upon the employee signing the proposed employment agreement that contains the trial period. The prospective employee must be given a reasonable opportunity to seek advice about the terms of the offer of employment otherwise they could challenge the validity of the trial period. It is important to ensure the trial period clause expressly states that the trial period commences on the employee’s first day of employment.
We recommend that employers contact us for specific advice when considering whether to implement trial periods.
Care should also be exercised in any dismissal situation, regardless of the existence of a trial period.