A recent case in the Employment Court, The Salad Bowl Limited v
Howe-Thornley, has put work trials under scrutiny.
In this case, Ms Howe-Thornley applied for a part time position
that had been advertised by The Salad Bowl. She was interviewed and
The Salad Bowl indicated that, if her reference checks and
subsequent work trial were satisfactory, there was no reason why
she would not be offered the job.
Ms Howe-Thornley was invited for a three hour work trial during
which she was to be supervised and appraised by the store manager.
Due to the store manager's illness, the work trial took place
over two days. Ms Howe-Thornley worked 1.5 hours on the first day
and 1.5 hours on the second day. During the work trial, she spent
time preparing salads, cleaning and on the second day interacting
with clients and operating the till. Although it was not
specifically discussed at the interview, the Court found that there
was an expectation that Ms Howe-Thornley be paid for the three hour
At the end of the second day, The Salad Bowl noticed that $50
was missing from the till. This was unusual and they followed up by
checking Ms Howe-Thornley's reference, which was
unsatisfactory. The Salad Bowl decided not to offer Ms
Howe-Thornley any further work and told her via text messages. When
Ms Howe-Thornley asked about being paid for her three hour trial,
the owner of the Salad Bowl replied that the money missing from the
till was the reason she did not get the job.
Ms Howe-Thornley raised a personal grievance and claimed that
she was an employee at the time of the work trial and had been
The Employment Court agreed. It found that Ms Howe-Thornley was
employed during the work trial up to the time that she was
dismissed by text message. This was because Ms Howe-Thornley had
carried out work during her trial and there was an expectation that
would be paid for that work.
The Employment Court found Ms Howe-Thornley's dismissal to
have been unjustified as a fair and a reasonable employer would
have given Ms Howe-Thornley the opportunity to explain the
discrepancy in the till receipts before making a decision to end
her employment. Ms Howe-Thornley was awarded lost earnings and
compensation totalling $6215.
Previously, it had commonly been considered that candidates for
jobs did not become employees until such time as they had
successfully completed a work trial, been offered and accepted a
The decision has wider implications as well, particularly where
an employer wants to include a 90 day trial period in an employment
agreement. A 90 day trial period enables an employer to dismiss an
employee within this period of employment. The employee cannot
raise a personal grievance for unjustified dismissal. These 90 day
trial periods may not be valid where the employee has previously
been involved in a pre-employment work trial and is, therefore, not
a "new employee" when they start work.
Lessons for employers:
Pre-employment work trials are best avoided
Consider other ways to demonstrate/test skills that do not
involve working in the business?
Where a work trial does take place, ensure that the parameters
are clear – clearly explain that it is part of the
recruitment process, that the individual will not be paid and that
any future offer of employment is conditional on satisfactory
completion of the full recruitment process.
Be aware that there may be issues around relying on 90 day
trial periods in employment agreements. These are only valid for
"new employees" and someone who has carried out a
pre-employment trial may no longer be a "new
The Court suggested that the 90 day trial period under s.67A
Employment Relations Act was a more suitable tool for "trying
out" an employee. It afforded some protection to the
employees, while giving employers the opportunity to assess an
employee's suitability for the role without risk of a personal
grievance for unjustified dismissal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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