When should a trial be paid?

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Essentially, a trial should be on pay where the employer gains an economic benefit from the employee’s work.

So, a cafe owner could legitimately ask an aspiring barista to make a cup of coffee. Or a word processor operator could be asked to perform a typing test. The Court has also considered that it would be acceptable for an employee to be invited to observe the workplace to see if they want to work there.

In the Salad Bowl case, the Judge found that during the three hour unpaid trial, the job applicant made salads, served customers, took payment and gave change and cleaned up after orders were fulfilled. The Judge observed that, while she would not have been as efficient as an experienced salad hand, she provided a benefit to The Salad Bowl. She was therefore an employee.

The Judge held the employment was for a fixed term but, because The Salad Bowl had not complied with the requirements of a fixed term agreement, the fixed term was ineffective. This meant the employee had been employed for an indefinite duration (i.e. she was a "permanent" employee).

The Salad Bowl therefore had to (1) pay her for the work she did (2) have a good reason to dismiss her and (3) had to follow a fair process. In addition to her wages earned during the trial, the Employment Court awarded the employee a further six weeks wages at the minimum wage plus $5,000 compensation for humiliation.

The upshot of this judgment is that employers must now be wary of engaging applicants on unpaid trials. The Judge advised employers to instead use 90 day paid trials.  He observed that 90 day trials don’t provide much in the way of protection for an employee, and they certainly don’t have to be 90 days long, but at least they provide more protection to vulnerable job seekers than the zero protection afforded by an unpaid work trial.  The Judge warned that if employers continue to engage job applicants on unpaid trials, they risk being on the losing end of a personal grievance. 

If you need advice on employment trials, either paid or unpaid, call Workplace Law on 09 631 5553.