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Justice not blind after all

Published 06 Nov 2018

In the past a lot has been said about Lady Justice wearing a blindfold, but every now and again it would seem like she peeps out from underneath, just to wink and let us know that she might be blindfolded but that that doesn’t mean she is blind.

This was the case once again in the matter of D & L Smith vs S Muir in the Employment Relations Authority (ERA) recently.

Mr & Mrs Smith applied for a position with Mr Muir as a 2IC and farm hand. They both provided their CV’s, listing three previous farms as references. Mr Muir tried contacting the listed references but were only able to reach one of the three, whom gave them a positive reference.
During the interview the employment agreement was discussed and both Mr & Mrs Smith were shown a copy and acknowledged that they were familiar with the standard Federated Farmers agreement. A formal offer was made and the Smiths were informed by Mr Muir that they could sign the agreement when they arrive on the farm.  

The Smiths arrived on the farm on the 31st of May 2017, received the employment agreement and commenced work on the 1st of June 2017. Needless to say, their employment commenced without them signing the employment agreement. This point is important as it invalidated the 90 day trial period.

During their tenure, Mr Muir had endless problems with the Smiths with regards to punctuality, their demeanour and capability to work as a 2IC and farm hand. Mr Muir was also informed that the Smiths actually moved around extensively and were not stationed on the farms as mentioned in their CV’s. Mr Muir tried contacting the reference again, with no success this time.

Mr Muir then decided the invoke the 90 day trial period clause and to terminate the service of the Smiths.

Subsequent to the termination a previous employer of the pair made contact with Mr Muir, informing Mr Muir that the Smiths were employed by him from 1 June to 23 July 2016. He terminated their service under the 90 day trial period for being unreliable, verbally abusive, not competent and causing distress to the animals. This proved that the Smiths were dishonest on their CV’s.

Correctly, the Member of the Authority presiding over this matter found that Mr Muir could not have relied on the 90 day trial period when he dismissed the Smiths as they had started employment before they signed the employment agreement.

The 90 day trial period was not the only issue to rule on, but for the sake of keeping the article short, we only refer to this issue.

Interestingly and rightfully so, the Member of the Authority made a ruling on the remedies, relying on previous case law, Xtreme Dining Ltd t/a Think Steel v Dewar (2016), where the Court said that where there has been outrageous or particularly serious employee misconduct, the absence of a remedy may be appropriate. In other words, even though the employee was found to be unjustifiably dismissed, the Authority or Court can determine that the employee do not receive a remedy as he/she is primarily responsible for the situation due to their misconduct.

In this particular case the Member of the ERA found that the Smiths were guilty of outrageous, particularly egregious or disgraceful misconduct in two areas specifically;
1.    They delayed signing the employment agreement provided to them before commencement of work, knowing this would invalidate the 90 day trial period. Knowing that Mr Muir relied on this clause to terminate their service, believing it is valid, they didn’t act in good faith towards their employer by informing him of the invalidity but rather relied on this misperception to build their case.
2.    They submitted falsified CV’s to Mr Muir misrepresenting themselves and obtaining a job that they would not otherwise have been offered.

No remedy was awarded to the Smiths.