Pre-employment trials can be a useful way to determine whether an employee is suitable for the job. Often, candidates can look good on paper or in an interview, but terrible when they actually 'go on the floor'. This is especially true in the hospitality industry. However, pre-employment trials are fraught with difficulty, as the employers in Mawhinney v SFIZIO Limited discovered.

In that case, the employee was invited to do a one day 'trial' shift from 8am to 4pm. It was not made clear to the employee that the shift would be unpaid, so it came as a surprise to the employee when she was told at the end of the day that she would not be paid.

At the hearing, the employee argued successfully that during the 'trial' she was in fact an employee and she was constructively dismissed when the employer refused to pay her for working the trial shift. She relied on the fact that she was never made aware that the trial would be unpaid and that she was engaged in productive work such as making coffee and taking orders, therefore she contributed to the employer's business. This went beyond a trial which would purely be to assess the candidate's suitability.

As the employee was successful in her claim, the ERA awarded her $7,000 for hurt and humiliation and two weeks' wages (being the notice period), a significant sum for one day of work.

This case is a good reminder that when an employer asks a prospective candidate to undertake a pre-employment trial, they must, at the very least:

  • Make it clear that the prospective candidate will not receive payment of any kind (even a free lunch);
  • Not engage in meaningful work that will benefit the employer in anyway;
  • Make it clear (and in writing) that it will just be a pre-employment trial, and that a formal offer of employment has not been made;
  • Keep the trial relatively short.

Alternatively, employers with less than 20 employees should consider using a 90 day trial period if they have concerns about the suitability of new employees.