Trial periods can prove tricky for employers

By Emma Coburn

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There is the potential for an unjustified dismissal if the applicant is unsuccessful in their job trial, but a 90-day trial period can only be used where the employee is new. Photo / Thinkstock
There is the potential for an unjustified dismissal if the applicant is unsuccessful in their job trial, but a 90-day trial period can only be used where the employee is new. Photo / Thinkstock

Employing someone is a big commitment. Many responsibilities come with it and conversely an employer places a lot of reliance and faith in the employee.

Sometimes it extends beyond this, particularly in smaller businesses where employees can be considered part of the family. Therefore employers have a lot to consider before bringing someone into the fold.

The 90-day trial period allows employers to assess the skills and competencies of an employee in their first three months of work.

During that time, employers can determine whether employees are fit to continue and dismiss those they do not wish to keep on without fear of legal backlash.

The trial period needs to be outlined in writing in the employment agreement, which is signed by the employee before he or she commences work. It is important to note that 90 days is the maximum period, but a shorter period can be agreed on.

It is common in some workplaces for an offer of employment to be dependent on performance during the trial. When an arrangement such as this takes place before the 90-day period, employers can sometimes get themselves into sticky situations.

What an employer might consider a pre-employment trial to assess suitability for employment, may actually be considered by a court to be employment. While "volunteering" is not considered an employment relationship, it will be if the "volunteer" providing their services expects to or actually receives reward for their work done.

In a recent case heard in the Employment Court, a potential employee underwent a pre-employment trial of three hours over two days at a salad bar.

The employer provided her a free salad for lunch following her shifts. At the end of the second day around $50 was missing from the till, and upon checking the employee's references, the unsatisfied employer let the employee know by text that there would be no more work available.

Unfortunately for the employer, there was no such thing as a free lunch - the court held that this actually constituted a "reward" for services, and that her work had contributed to the employer's business, therefore what actually occurred was an illegitimate 90-day trial period. By asking her not to return, it was an unjustified dismissal because no disciplinary process had been followed.

This case is a good example of some of the confusion that can arise with pre-employment trials.

Not only is there the potential for an unjustified dismissal if the applicant is unsuccessful in their job trial, but a 90-day trial period can only be used where the employee is new. Therefore, if a person is considered to be an employee while undertaking a pre-employment trial and they are then offered a permanent position, the 90-day trial period may be considered void.

Because of this ambiguity, pre-employment trials are best avoided as an employment agreement (such as the Federated Farmers Individual Employment Agreement) already contains a 90-day trial period provision which, if executed properly, will provide a safety net for employers.

Nonetheless there are ways for employers to mitigate these risks during a pre-employment trial, such as:

*Clearly explaining that the pre-employment trial is part of the recruitment process;
*Ensure the potential employee is not paid or rewarded for the work they undertake; and
*Ensure the work performed does not substantially contribute to the business.

If you have any questions about a pre-employment trial or 90-day trial periods generally, call 0800 FARMING for free, confidential and independent employment advice.

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