An employer sought an “outgoing” person to run its mobile salad cart. One applicant had a great CV and interviewed well. The employer asked her to come in for a work trial to make sure she could multi-task in their small workplace.

They did not sign an agreement or discuss wages. The applicant worked the salad cart for a few hours. She served customers and made salad, performing work she’d do if offered the role.

Following the trial, the employer decided not to hire the applicant. Unfortunately for the employer, the Employment Court found this “work trial” was “employment”. The employee could not be dismissed without a proper process, and she was entitled to lost wages and $5,000 compensation.

Sometimes, pre-employment testing may be okay, but employers must ensure “tests” are agreed to (include a “consent” option on job applications).

Tests must also be genuine tests, not daily work tasks. For example, a teacher may be asked to teach a class of other teachers as a test of their teaching ability. It would not be appropriate to have a teacher teach a class of students.

In this case, the applicant was asked to do the actual job and not a test. She should have been brought on as an employee on a trial period.

People taken on even for a short trial are entitled to the minimum wage for that trial.  For the “trial period” to be legal the employee has to agree in writing to it before the trial period starts. Other written requirements (such as the inability to take a Personal Grievance for dismissal) need to be included in the agreement.

Any dismissal under the trial period provision needs to be carried out before the end of the trial period.

If you are concerned about what this case might mean for you, please contact the writer for a relaxed and confidential initial chat.