Work before commencing employment invalidates 90 day trial…

The Employment Court has upheld a claim for unjustified dismissal when a mechanic was fired under a 90 day trial clause.

The mechanic had been given a contract to commence employment, but could not start until his visa was granted.  In the period between signing the agreement and the intended start date (which was when the visa was to be granted) he attended the workplace and carried out some tasks.

The employer claimed that the tasks were either an unpaid assessment or were as a volunteer.  However, the Court found that the tasks undertaken meant that the worker was an employee, despite the fact that it was unlawful for them to be employed prior to their visa being granted.  As they had undertaken tasks as an employee (not as a volunteer or part of an assessment) they were previously employed by the employer before the 90 day trial period started.  This meant the employer could not rely on the 90 day trial period and the dismissal under it was unjustified.

The Court confirmed a $10,000 award for compensation plus lost wages.

It is very important when relying on a 90 day trial period that the employee has not been employed in any capacity previously by the employer.  If there is a true assessment or volunteer situation, then they should be clearly recorded in writing, so that both parties understand that there is no employment relationship prior to the actual employment commencing.

Alan Knowsley

Employment Lawyer
Wellington