Posted on: Nov 26, 2015
A recent determination from the Employment Relations Authority has found a voluntary, unpaid pre-employment test did not form part of a trial period. The employees personal grievances for unjustified dismissal and disadvantage failed.
After attending an interview for a position in a salon, the candidate agreed to work as a volunteer for one day so her suitability for the role could be assessed. The arrangement was confirmed in a subsequent email, in which the salon director said she was “looking forward to seeing [her] on Saturday for [her] voluntary pre-employment test.”
The candidate attended the salon on 6 December 2014. She helped with cleaning, shampooing clients’ hair, and making tea and coffee. When she left the salon, she told receptionist, “I hope I get the job.” At no stage did the parties discuss being paid for the pre-employment test, nor was it ever requested.
On 8 December 2014, the salon director emailed the candidate a letter of offer and an employment agreement. Both documents made it clear that the employment was subject to a 90-day trial period, with the employment agreement specifying that employment was to commence on 10 December 2014. The parties met at the salon the following day where they both signed the employment agreement, and the employee started work the day after that.
For a number of reasons, the employer decided to terminate the employment pursuant to the trial period provision in the employment agreement, and notified the employee of the decision in writing on 28 January 2015.
The employee then raised a personal grievance for unjustified dismissal, claiming that the salon was not entitled to rely on the trial period provision because she was already an employee at the time the employment agreement was signed. In addition, she claimed that she had been unjustifiably disadvantaged by the employer’s failure to provide adequate training, that the employer had breached its duty of good faith, and that she was entitled to payment for the hours she had worked on 6 December 2014 (the so-called voluntary pre-employment test).
In considering whether she was already an employee at the time of signing the employment agreement, the Authority had regard to the Employment Relations Act’s definition of an employee, which excludes a volunteer who does not expect to be rewarded, and is not in fact rewarded for work to be performed as a volunteer. It noted that the work on 6 December 2014 was characterised as a “voluntary pre-employment test” and that there was no discussion of payment. Nor did the she ever query the non-payment, present a timesheet, or act in any way consistent with an expectation that she would be paid for the hours worked.
There was also no evidence to suggest that she had been offered employment before 6 December 2014, which was supported by her statement to the receptionist that she hoped she would get the job. The employment agreement stated that the first day of work was 10 December 2014, and the employee had signed the agreement confirming that she had read and understood it.
On the whole, the Authority agreed with the 6 December 2014 work being a voluntary pre-employment test. This meant that the employee was not already an employee of the employer when the employment agreement was signed. The trial period provision was therefore valid and she had been justifiably dismissed pursuant to it. The Authority rejected all her other claims.
While found ‘safe’ under the circumstances of this case, we stilll advise employers to use caution on any pre-employment test as they can be very risky if not done right. Employment Relations Authority determinations are not binding, and therefore this particular employer’s “success” could be a one off.
As a reminder:
- Make sure the trial is explicitly clear (in writing) that this is a pre-employment assessment, that the candidate will not receive any remuneration, and that no offer of employment has been made. Ensure candidates acknowledge and sign acceptance of this.
- Keep any work trial short in duration and require the prospective employee to undertake mock work — that is, not real work for real customers (or unpaid work shifts).
- Carefully tailor the work trial so that candidates are tested on particular tasks central to the position.
- Do not call it a “work trial”. Call it a “pre-employment assessment”, “evaluation” or “test”.
See: Hansen v Shooting Star Enterprises Ltd t/a Fusion Salon  NZERA Auckland 311
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.