Trial periods and tribulations

The nature and legality of trial periods continue to cause some confusion, as evidenced by two recent Employment Relations Authority (ERA) cases. In the first case, the applicant was hired as a chef by Eden Mozaik under an employment agreement that stipulated that there was to be a 90 day trial period. However, the applicant claimed that he had been employed prior to the signing of the written agreement, which would have invalidated the trial period.

The applicant was asked by a store manager to attend a pre-employment trial, which was common practice for the business. Shortly after the end of this, which spanned a couple of days, the applicant received and signed his written employment agreement. ERA Member Anna Fitzgibbon found that the applicant had not entered an employment relationship with the respondent prior to the signing of the agreement. “He had volunteered to trial for a couple of days to get the feel for working at Eden Mozaik,” she wrote.

In the other case, the applicant was interviewed for a position with an eatery called The Salad Bowl and left with the impression that she had been offered the job. The respondent, on the other hand, was ‘adamant’ that she had advised the applicant that there would be a ‘trial period’. ERA member, Michael Loftus, had to determine whether there was an employment relationship, since the applicant wished to pursue a personal grievance.

The applicant had worked in the café on two consecutive days during which she assisted in food preparation and serving customers. While the respondent admitted it was usual practice to pay those attending trials, she assumed that the applicant had stolen money missing from the till. The applicant was not offered any further work; she claimed she had been unjustifiably dismissed.

The member decided that there was an employment relationship in this case. “It was intended there be an exchange of labour for remuneration. The fundamental characteristics of an employment agreement are present,” he wrote.

On the surface, the findings in these two cases appear to be inconsistent. However, Karen Radich, barrister at Clifton Chambers, pointed out that the facts differ. In the first case, the employer had emphasised that the applicant would be undertaking a brief trial for a café not yet open. “[Whereas] in The Salad Bowl case…there was a factual disagreement as to whether the employee was working that sort of trail to begin with or had actually started work already,” Radich said.

Nevertheless, the cases highlight the need for clarity when arranging ‘trials’. Radich suggests avoiding the term ‘trial period’ completely, confirming in writing that it is a work test and unpaid, and making it short and directly relevant to the position that is open.

Key HR Takeaways:

• When setting a pre-employment work test, avoid the term ‘trial period.’ “[It] is confusing, and leads the person to think it’s a trial period under the ERA, which it is not.”
• “Don’t pay the person, as that forms an employment relationship (being work that is undertaken for reward).”
• “Confirm in writing that the person is doing a voluntary, unpaid work test.”
• “Make it short and snappy, as part of the recruitment/assessment process.”
• “Avoid having the person work a whole shift, or several days, as that indicates that they have actually started work as an employee.”