Testing out worker for a day held to be employment…

An employee was found to have been unjustly dismissed under a 90 day trial provision because he had already “worked” for a day before signing the agreement.

The worker interview took the form of having the employee meet with the boss and then spend the day doing tasks at the workplace.  He was then offered a job and given an agreement to sign.

The ERA held that the day spent doing tasks was employment (even though unpaid) and so the 90 day trial period (signed after that day) could not be relied upon.  The employee was awarded $4,500 compensation plus lost wages (yet to be assessed).

Conducting skills testing should not take the form of work or else it can be held to be employment.  Even if no job had been offered after the day’s work in this case the worker would still have been “employed” and therefore unjustifiably dismissed. Skills testing is common but should not be actual work but rather a simulated test.

 

Alan Knowsley