A recent Employment Court decision has highlighted the potential
traps in using a work trial.
Amberleigh Howe-Thornley applied for a job at a shop called The
Salad Bowl. She was interviewed, then invited to do a
three-hour work trial. When cashing up at the end of the day,
the shop owner discovered $50 was missing from the till and assumed
that Ms Howe-Thornley had taken it. Ms Howe-Thornley was then told
there was no job for her.
Ms Howe-Thornley raised a personal grievance claiming she had been
unjustifiably dismissed from her employment with The Salad
Was she an employee?
The Employment Court considered whether the work trial constituted
employment. It concluded that Ms Howe-Thornley was an
employee. It took into account:
• the fact that Ms Howe-Thornley was required to
dress and present herself to customers as a member of staff;
• the fact that the tasks Ms Howe-Thornley
performed - preparing salads, serving customers - were the same as
she would have carried out had she been employed. Therefore
The Salad Bowl gained an economic benefit from her work;
• that Ms Howe-Thornley was "rewarded" for her
work by being given a salad; and
• that the parties expected Ms Howe-Thornley
would be paid (even though she wasn't due to the alleged
The Court then considered what contractual arrangements might
An employer who wants to be able to dismiss an employee without
the risk of a personal grievance can use a trial period.
Although generally known as "90-day trial periods", they can be for
a much shorter time-frame.
However, employers must comply with strict statutory
conditions. In particular, the employee must be given a copy
of the intended employment agreement, including the trial period
provision, a reasonable time before commencing work in order to
have the opportunity to seek advice before signing. The
employee must also sign the agreement before starting work.
As Ms Howe-Thornley had no written employment agreement, The Salad
Bowl could not rely on a trial period to dismiss her.
An employer can include a probationary period clause in an
employment agreement. A probationary period may only be for
as long as necessary in the circumstances. Unlike a trial
period, an employee dismissed while on probation may still bring a
claim for unfair dismissal, and the employer's justification for
termination and the process followed will still be
Again, as Ms Howe-Thornley had no written employment agreement,
there was no applicable probationary period clause.
Fixed Term Agreements
Finally, parties may agree that their employment relationship will
be for a fixed term, which ends on a particular date, or when a
particular identified event occurs. When a fixed term employment
agreement ends, as agreed, it does not constitute a dismissal, and
the employee does not have the right to raise a personal
However, the Employment Relations Act limits the use of fixed term
agreements. In particular, a fixed term agreement may not be
used "to establish the suitability of the employee for permanent
The Court concluded that Ms Howe-Thornley was employed on a fixed
term agreement, which was to end when The Salad Bowl informed her
of its decision as to whether she would be made a permanent
However, because the fixed term was being used to assess her
suitability, it was unlawful. Ms Howe-Thornley could
therefore challenge her dismissal.
The Employment Court found that The Salad Bowl failed to bring its
concerns to Ms Howe-Thornley's attention and to give her a chance
to respond before dismissing her. Her dismissal was therefore
unjustified. She was awarded damages for lost wages and for
hurt and humiliation.
• A trial is just that, a trial. To avoid
issues of whether a job applicant is in fact employed, the trial
should be as short as possible, and the applicant should not be
• The applicant should not be held out as being
an employee, by, for example, being required to wear company
• The employer should not derive a benefit form
the work performed. For example, if an applicant is required
to make coffee or prepare food, this should not be sold to
• If you need longer than a few hours to assess
an applicant's suitability, give them an employment agreement with
a 90-day trial period.