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Trial Periods v. Work Tests

Posted by denise on 19 March 2013 | 0 Comments

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What is the difference between a trial period and a work test?  Two recent ERA cases highlight that employers are still confused by the application of trial periods and are unsure about how to use a pre-employment work test.  Pre-employment work tests are common practice  in many industries; hospitality, retail, hairdressing.  Many are entered into verbally with no written evidence that both parties acknowledge it is a work test. 

In the first case, the applicant was hired as a chef by Eden Mozaik under an employment agreement that stipulated that there was to be a 90 day trial period. However, the applicant claimed that he had been employed prior to the signing of the written agreement, which would have invalidated the trial period.

The applicant was asked by a store manager to attend a pre-employment trial, which was common practice for the business. Shortly after the end of this, which spanned a couple of days, the applicant received and signed his written employment agreement. The ERA found that the applicant had not entered an employment relationship with the respondent prior to the signing of the agreement, instead he had volunteered to trial for a couple of days.

In the other case, the applicant was interviewed for a position with an eatery called The Salad Bowl and left with the impression that she had been offered the job. The employer, on the other hand, was ‘adamant’ that she had advised the applicant that there would be a ‘trial period’.

The applicant had worked in the café on two consecutive days during which she assisted in food preparation and serving customers.  The employer  admitted it was usual practice to pay those attending trials.  During the period of the work trial money went missing from the till, the employer  assumed that the applicant had stolen the money.  The applicant was not offered any further work; she claimed she had been unjustifiably dismissed.

The ERA decided that there was an employment relationship in this case. “It was intended there be an exchange of labour for remuneration. The fundamental characteristics of an employment agreement are present,” the ERA member  wrote.

On the surface, the findings in these two cases appear to be inconsistent. However, Karen Radich, barrister at Clifton Chambers, pointed out that the facts differ. In the first case, the employer had emphasised that the applicant would be undertaking a brief trial for a café not yet open. “[Whereas] in The Salad Bowl case…there was a factual disagreement as to whether the employee was working that sort of trial to begin with or had actually started work already,”  Radich said.

The cases highlight the need for clarity when arranging ‘trials’. Radich suggests avoiding the term ‘trial period’ completely, confirming in writing that it is a work test and unpaid, and making it short and directly relevant to the position that is open.

Some key HR learnings for employers:

  • When setting a pre-employment work test, avoid the term ‘trial period.’ Radich suggests  “It  is confusing, and leads the person to think it’s a trial period under the ERA, which it is not.”
  • Don’t pay the person, as that forms an employment relationship (being work that is undertaken for reward).
  • Confirm in writing that the person is doing a voluntary, unpaid work test
  • Make it short and snappy, as part of the recruitment/assessment process
  • Avoid having the person work a whole shift, or several days, as that indicates that they have actually started work as an employee

Source: HRM Online

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