A Northland kiwifruit company has failed in its latest attempt for a rehearing in an employment court decision that ordered it to pay an employee $15,000 for not clarifying a 90-day trial period.

Farrand Orchards in Kerikeri was taken to court in 2019 for a personal grievance by former employee Michael Tane, over issues with the date of signing on his contract after he was terminated for being “too tall”.

On March 8, 2019, Tane accepted a verbal agreement by a handshake with owner Kerry Farrand for a 40-hour-a-week position on his orchard with accommodation, to which Tane told the employment court that no 90-day trial period was discussed.

At the time, Tane lived in Auckland and said he would not have accepted an offer requiring him to relocate his family to Kerikeri with a 90-day trial condition.

On March 17, 2019, Kerry Farrand emailed Tane a written employment agreement with a 90-day trial period it was however incomplete, unsigned, undated, and did not have Tane’s name or job description or contain any payment details.

Still, with no signed contract, Tane travelled with his belongings and furniture to Kerikeri on March 30, 2019, moved into the orchard accommodation and commenced work on April 1, 2019.

The authority found Farrand gave Tane another contract on or around April 4, 2019, that Tane returned, signed, on April 8, 2019, after he had commenced employment.

The employee was terminated after being told he was too tall, sparking a dispute over a 90-day trial period . Photo / John Stone

On June 21, 2019, Farrand gave Tane seven days’ notice of termination, which Tane said “came as a complete shock.”

The authority found the orchard’s failure to ensure the written employment agreement containing the 90-day trial period was executed prior to Tane’s employment commencing was fatal to its reliance on that term.

As a result of the delayed signing, the authority determined the trial clause was invalid.

Throughout the hearing, Farrand attempted to present a case that Tane knew and agreed to the 90-day clause because he had moved into the property on March 30.

He said he believed there was a concluded employment agreement when Tane arrived in Kerikeri for the purposes of his employment “both by word and deed”.

Tane argued the draft document that had been forwarded to him on March 17, 2019, was unclear because as well as not containing all relevant terms and conditions of employment, it referred both to a 90-day probationary clause and to a 90-day trial clause, a confusion that was never resolved.

The authority rejected Farrand’s arguments and he was ordered to pay.

In Farrand’s latest application for a rehearing, he said he had fresh evidence Tane knew about the 90-day trial period prior to him starting.

Retired clinical psychologist Craig Sawyer provided an affidavit stating he hosted a party on March 31 to which the Farrands and Tane attended.

In his affidavit, Sawyer said he recalled a conversation in which Tane said “something to the effect of a review or a trial period”.

In his response to Sawyer, Tane said he had not seen Farrand on March 31 “let alone attended a party” and it was a “backdoor method” to reignite the court case.

In his latest decision from the Employment Court, Judge Bruce Corkill found Farrand’s latest evidence was unlikely to assist the court or change the outcome.

“The alleged reference to a 90-day provision in an informal conversation ... would not take the matter further.

“Mr Sawyer’s evidence is, on the face of it, credible, but as I have explained, it is not determinative. It relates to one aspect of a complex chronology. I do not consider the evidence had the potential to lead to a different outcome.”

Judge Corkill was not satisfied circumstances would lead to a miscarriage of justice and the application was declined.