Work trials have pitfalls for unwary employers
Employment lawyers say employers should be wary of using "on-the-job" work trials which don't protect them from the personal grievance process as the statutory 90-day period does.
Sarah Townsend of Duncan Cotterill said a recent decision by the Employment Court held lessons for all employers, after the court sided with a woman who worked for three hours for a food outlet, which then did not offer her a job.
The court ruled a Nelson cafe, The Salad Bowl, had unjustifiably sacked the woman, Amberleigh Howe-Thornley, because it had given her an expectation she would be paid for her three-hour trial.
The court found Howe-Thornley, fairly believed that if her reference checks and work trial were satisfactory, there was no reason she would not be offered a job. She prepared salads, cleaned, and operated the till but at the end of her trial, The Salad Bowl operators noticed $50 was missing from the till.
Checks on Howe-Thornley's references also proved unsatisfactory. She was told by text that she did not get the job because of the missing money and she took a personal grievance case.
The court agreed she was an employee at the time of the work trial and had been unjustifiably dismissed because she had worked during her trial and there was an expectation she would be paid.
There was also the issue that "a fair and a reasonable employer would have given Howe-Thornley the opportunity to explain the discrepancy in the till receipts before making a decision to end her employment", Townsend said.
The lawyer said the ruling upset the common belief that job candidates did not become employees until they had successfully completed a work trial, and been offered and accepted a position. It also had wider implications for the 90-day trial period.
This allows an employer to dismiss an employee within that time frame without the risk of a personal grievance case for unjustified dismissal. But the 90-day trial was only valid if the employee was new.
If the worker had previously been in a pre-employment work trial at the same company, any protections under the 90-day trial might be void, she said.
Employers were best to steer clear of short work trials and consider other ways to test a candidate's skills without involving work in the business. If they did hold a work trial, they should ensure the parameters were 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," Townsend said.
Another commercial law firm, Hesketh Henry, said it was a case of "watch this space".
"For the moment, employers need to be extremely cautious using pre-employment assessments regardless of whether they are paid or unpaid," lawyer Jim Roberts said.
The closer the pre-employment assessment looked like work rather than an evaluation, "the greater the risk the employer takes that it has employed the person".
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