ERA finds practical difficulties and relationship breakdown weigh against reinstatement
The Employment Relations Authority (ERA) recently dealt with an interim reinstatement application from a farm worker who claimed she was unjustifiably dismissed under an invalid trial period, seeking to return to her role and accommodation while her substantive grievance was being determined.
The worker argued that she had been offered and accepted employment before signing her written agreement, making the 90-day trial period provision invalid under employment law.
She sought interim reinstatement to her assistant farm manager position and the farm accommodation that came with the role.
The case raised questions about when employment relationships are formed, the validity of trial periods, and the practical considerations for interim reinstatement in small businesses.
The worker sought to return to the farm while her substantive case was heard, but the employer strongly opposed reinstatement, citing trust issues and practical difficulties.
Employment formation and trial period validity
The worker was recruited by the farming company in March 2025 and signed a comprehensive employment agreement on 7 April 2025, recording a start date of 16 April 2025.
The agreement contained a 90-day trial provision, which the company later relied upon when dismissing her on 19 June 2025.
The worker argued that text message exchanges showed she had been offered and accepted employment before signing the written agreement.
She pointed to a message from the company director's wife on 25 March 2025 saying "start tomorrow haha can't wait to have ya join us!" as evidence that employment had already been agreed.
The worker submitted that this message implied she had already been offered the job, could elect a start date, and that the director's wife acknowledged she had given notice to her previous employer.
The worker argued that at this time she had not been provided with the individual employment agreement, but was clearly "an employee intending to work," which would invalidate the trial period under established case law.
Company's defence and evidence challenges
The farming company argued that the text message comment was nothing more than a joke and could not be taken as a serious agreement about employment terms.
The company submitted that there was no offer of employment capable of acceptance prior to 26 March 2025, when the worker was shown the farm accommodation and provided with the employment agreement.
The company relied on call logs to confirm there was no communication with the worker and no instruction to carry out any work prior to the start date in her employment agreement.
The directors filed affidavits on 24 July 2025, providing their version of events and challenging the worker's claims about early employment formation.
Despite being given the opportunity to file a reply affidavit, the worker chose not to do so, meaning the directors' evidence remained unchallenged at the interim stage.
The ERA noted this significantly weakened the worker's position, as their strongly held view that no work was performed before the written agreement was signed went uncontested.
Accommodation issues and workplace problems
During her employment, the worker was provided with a self-contained house on the farm as part of her service tenancy.
She reported various problems with the accommodation, most of which were promptly addressed by the company.
A significant issue arose when a builder discovered the roof tiles contained asbestos while repairing a chimney leak.
The builder advised that while the tiles were not currently a safety risk, any replacement would need to be done safely, given the asbestos hazard.
The company obtained quotes for the work, which would take several weeks, during which the accommodation could not be occupied.
On 16 June 2025, the worker raised a personal grievance largely relating to accommodation issues.
Three days later, on 19 June 2025, the company gave her notice of dismissal under the trial period provision, providing five days' notice of employment termination and 14 days' notice to vacate the accommodation.
Post-dismissal conduct and relationship breakdown
The ERA found that several events after the worker's dismissal created serious impediments to re-establishing the employment relationship.
The worker's representative contacted the organiser of dairy industry awards, where the directors had been named Share Farmers of the Year, questioning whether the award was appropriate given that they were allegedly poor employers.
The representative also contacted the trust that owned the farm property to advise of the employment dispute, despite the trust not being a party to the employment relationship.
The ERA found these actions caused significant ill will and made it difficult to envisage the parties working cooperatively again.
Additional concerning conduct included the worker following a delivery driver for kilometres and confronting her on the roadside after a package was damaged by the company's dog.
The ERA noted this appeared to be deliberate intimidation conduct. The worker also allegedly removed company wet weather gear valued at over $1,000 when vacating the accommodation without authorisation.
ERA's interim reinstatement analysis
The ERA applied the established test requiring demonstration of a serious question to be tried, assessment of the balance of convenience, and consideration of overall justice.
While finding the worker met the low threshold for an arguable case, the Authority noted her argument did not appear strong.
The ERA found that the evidence that the worker was "a person intending to work" before signing the written agreement was not unequivocal.
The Authority noted that even if there were discussions in March 2025, there was no evidence that the parties had agreed on all terms and conditions, or that there was certainty about the employment relationship.
The Authority determined that, based on the available information, the company appeared to have the stronger case that the worker was dismissed under a valid 90-day trial period provision, which would make her dismissal not amenable to challenge under employment law.
Balance of convenience and practical considerations
The ERA found that the balance of convenience weighed against interim reinstatement.
The worker provided no evidence about her financial circumstances, efforts to secure new employment, or specific detriment from not being reinstated.
Her affidavit was described as "lacking in any detail" about why interim reinstatement was necessary.
Conversely, the company demonstrated significant practical difficulties with reinstatement.
As a small employer of only five people, including the directors, accommodating the worker would be highly disruptive.
The company argued it would need to employ a second assistant manager to supervise the worker, imposing significant costs on the small business.
The accommodation remained unavailable due to ongoing asbestos remediation work that would take several weeks to complete.
The ERA concluded that any detriment to the worker could be remedied through damages if her substantive claim succeeded, while reinstatement would cause immediate and significant disruption to the farming operation.
