COMMENTARY: Beware the Pre-Employment Work Trial
A recent case in the Employment Court - The Salad Bowl Limited v Howe-Thornley - has put work trials under scrutiny.
In this case, Ms Howe-Thornley applied for a part time position that had been advertised by The Salad Bowl. She was interviewed and The Salad Bowl indicated that, if her reference checks and subsequent work trial were satisfactory, there was no reason why she would not be offered the job.
Ms Howe-Thornley was invited for a three hour work trial during which she was to be supervised and appraised by the store manager. Due to the store manager’s illness, the work trial took place over two days.
Ms Howe-Thornley worked 1.5 hours on the first day and 1.5 hours on the second day. During the work trial, she spent time preparing salads, cleaning and on the second day interacting with clients and operating the till.
Although it was not specifically discussed at the interview, the Court found that there was an expectation that Ms Howe-Thornley be paid for the three hour work trial.
At the end of the second day, The Salad Bowl noticed that $50 was missing from the till. This was unusual and they followed up by checking Ms Howe-Thornley’s reference, which was unsatisfactory.
The Salad Bowl decided not to offer Ms Howe-Thornley any further work and told her via text messages. When Ms Howe-Thornley asked about being paid for her three hour trial, the owner of the Salad Bowl replied that the money missing from the till was the reason she did not get the job.
Ms Howe-Thornley raised a personal grievance and claimed that she was an employee at the time of the work trial and had been unjustifiably dismissed.
The Employment Court agreed. It found that Ms Howe-Thornley was employed during the work trial up to the time that she was dismissed by text message. This was because Ms Howe-Thornley had carried out work during her trial and there was an expectation that would be paid for that work.
The Employment Court found Ms Howe-Thornley’s dismissal to have been unjustified as a fair and a reasonable employer would have given Ms Howe-Thornley the opportunity to explain the discrepancy in the till receipts before making a decision to end her employment. Ms Howe-Thornley was awarded lost earnings and compensation totalling $6215.
Previously, it had commonly been considered that candidates for jobs did not become employees until such time as they had successfully completed a work trial, been offered and accepted a position.
The decision has wider implications as well, particularly where an employer wants to include a 90 day trial period in an employment agreement.
A 90 day trial period enables an employer to dismiss an employee within this period of employment. The employee cannot raise a personal grievance for unjustified dismissal.
These 90 day trial periods may not be valid where the employee has previously been involved in a pre-employment work trial and is, therefore, not a “new employee” when they start work.
Lessons for employers:
- Pre-employment work trials are best avoided
- Consider other ways to demonstrate/test skills that do not involve working in the business.
- Where a work trial does take place, ensure that the parameters are clear – clearly explain that it is part of the recruitment process, that the individual will not be paid and that any future offer of employment is conditional on satisfactory completion of the full recruitment process.
- Be aware that there may be issues around relying on 90 day trial periods in employment agreements. These are only valid for “new employees” and someone who has carried out a pre-employment trial may no longer be a “new employee”.
The Court suggested that the 90 day trial period under s.67A Employment Relations Act was a more suitable tool for “trying out” an employee.
It afforded some protection to the employees, while giving employers the opportunity to assess an employee’s suitability for the role without risk of a personal grievance for unjustified dismissal.
Sarah Townsend is an associate in the specialist employment law team of Duncan Cotterill.