Can employers use ‘on the job trials’ as part of the recruitment process? An Employment Court decision suggests the answer is ‘yes’, but there are still some pitfalls to watch out for.
To avoid confusion, for the remainder of this article we will call on the job trials ‘pre-employment assessments’, to avoid confusion with ’90 day trial periods’, and ‘probationary periods’ which are specifically and separately provided for under the Employment Relations Act 2000 (“Act”).
The Salad Bowl is a café in Nelson, preparing and selling salads. In 2012, it proposed expanding its operations by adding a mobile cart outlet. Ms Howe-Thornley dropped off her CV to The Salad Bowl’s café premises and was brought in for an interview by the owner, Randi Westphal.
Ms Howe-Thornley claimed that the interview ended with an offer of permanent employment without any mention of a trial period, and that she accepted that offer. By contrast, Ms Westphal said that she made it clear to Ms Howe-Thornley that she would be required to undergo a three-hour work trial on a future date.
Ms Howe-Thornley duly attended a work trial on 19 August 2012 and, under the supervision of the store manager, assisted with a range of tasks including food preparation and cleaning. She did not directly interact with customers or handle money. Unfortunately, about 1.5 hours into the work trial the store manager fell ill. Ms Westphal therefore invited Ms Howe-Thornley to return at 11am the following day for the remainder of her work trial.
The following day Ms Howe-Thornley’s range of duties expanded to contact with customers and operating the cash register. After about 1.75 hours, she was invited to make herself a salad at no cost, which she did before departing.
Then things turned nasty. At the end of the second day of the work trial, Ms Westphal discovered a shortfall of $50 in the cash register. She concluded that Ms Howe-Thornley must have been responsible.
That evening, Ms Westphal sent Ms Howe-Thornley a text message advising “No need to come into the salad bowl tomorrow. We’ll be in touch”. When Ms Howe-Thornley made enquiries about a week later, Ms Westphal bluntly advised by text message that money was missing, there was no job for her, and that she was to return her Salad Bowl t-shirt.
Ms Howe-Thornley raised a personal greivance for unjustified dismissal. She was successful before the Employment Relations Authority, which held that she was an employee of The Salad Bowl, there was no 90-day trial period, and she had been summarily dismissed.
The Employment Court ultimately held that, on the facts, Ms Howe-Thornley was an employee. This was because she was given a salad in return for her pre-employment assessment. As a result, she was working for reward (a key part of the definition of “employee” in the Act) and was an employee of The Salad Bowl. The dismissal was therefore unjustified.
Why was she an employee?
Where the person on trial has a reasonable expectation that they are to receive some sort of reward or benefit (whether money, food, parking, or otherwise), then it is likely they will be held to be an employee. That expectation will come from some other person – for example, the employer telling them they will receive some money for their pre-employment assessment.
The impact of having someone receive reward (and likely being held to be an employee) means that the employer cannot then use a 90-day trial period, as the person is already employed. 90-day trial periods can only be entered into for new employees, and before employment commences.
While pre-employment assessments will never be totally foolproof, the Court’s approach and comments indicates that they can still be used, but with considerable caution, as long as the assessment is truly voluntary.
Tips for using pre-employment assessments
- The shorter the pre-emploment assessment the better. This reduces the risk that the person on trial appears to be part of the business, and therefor an employee.
- Don’t get the person on trial to perform tasks for the employer’s benefit. Ms Howe-Thornley prepared food for sale and had contact with customers – i.e. she did things that brought in revenue for The Salad Bowl.
- Don’t give the person on trial anything, nor promise to give them anything. This includes not only pay, but meals, taxi vouchers, fuel money, parking money etc. This reduces the risk that they will anticipate getting anything in return.
- Put in writing and get the person’s confirmation that it is a pre-employment assessment.