Despite being on two ‘trial periods’ an employee was found by the Employment Relations Authority to be an employee. The employee performed work contributing to the employer’s business, he received $65 a day, and the ERA determined he worked under a fixed term employment agreement.

An employer cannot use a fixed term employment agreement to establish an employee’s suitability for permanent employment because the fixed term advantage will be lost. The fixed term employment was unlawful and the employee was able to treat the fixed term as ineffective. The ERA found the employee was employed indefinitely by the employer.

Before his employment meeting the employee decided if he was not paid minimum entitlements owing to him during his trial period and offered employment on terms acceptable to him he would resign.

The ERA found the employer did not breach any duty to the employee of sufficient seriousness to make his resignation reasonably foreseeable to the employer. The ERA determined the employee was not constructively dismissed.

The employee was entitled to claim arrears of wages for the time worked and holiday pay from the employer of over $2000.