Trial Periods and Pre-employment Tests

Background

Ms Hansen sought employment with Fusion to cover the absence of a friend taking parental leave.  The employer arranged a “voluntary employment test” on a Sunday to ascertain her suitability.  No payment was offered and none was sought by Ms Hansen.  As she left at the end of the trial she said to an employee “I hope I get the job”.

Two days later she was offered employment.  The offer contained a 90 days trial period. The next day Ms Hansen accepted the offer and started work a day later.

Subsequently it became apparent Ms Hansen lacked the skills for the role and she was terminated after seven weeks’ employment.

Was Ms Hansen unjustifiably dismissed?

The Authority said no, because:

• She signed the employment agreement and accepted the trial period before she was employed.
• The voluntary employment test did not constitute employment because under s6 of the Employment Relations Act the definition of employee excludes a volunteer who does not expect to be rewarded and receives no reward for such work.
• No offer of employment was given to Ms Hansen before the test.
• At no stage during the test or at any time thereafter did Ms Hansen seek payment for the test.
• The employment offer was signed before Ms Hansen commenced work.
• She was dismissed in accordance with the trial period provisions by the giving of one weeks’ notice.

Was Ms Hansen unjustifiably disadvantaged due to lack of training?

The Authority said no, because:

• She was provided with induction training.
• Training was offered regularly at the voluntary Monday evening training sessions.

Was there any breach of the duty of good faith?

The Authority said no, because:

• Ms Hansen was advised of the performance concerns.
• She failed to advise Fusion she was unable to cope with the tasks.
• The employer’s attitude to Ms Hansen was not unacceptable.

Does Fusion owe Ms Hansen any monies for the pre-employment test?

The Authority said no, because:

• Ms Hansen voluntarily attended the pre-employment test.
• Volunteers do not expect and are not remunerated.

Key Points

In some situations there may be merit in having prospective candidates participate in a pre-employment test to check their suitability for the role.

• The key point is that the employee is not employed at that point, provided they accept the test is voluntary and unpaid; and no payment or reward is provided.  Note that trying to do the right thing and make some payment or provide some reward for participating in the test is likely to prejudice the voluntary nature of the test.
• The voluntary pre-employment test does not negate the trial period provision, provided the employee is given a reasonable opportunity to take advice and signs the agreement before they start work.
• If the employee is not measuring up the employee must be informed; and provided with reasonable assistance to help their performance improve.  ie the termination should not come as a surprise to the employee.
• If following that termination is to occur, notice must be given in accordance with the agreement.