Employers sometimes use short pre-employment trials, lasting only one shift or even less, to assess a person’s suitability for permanent employment. If a trial is successful, the person is then hired in a permanent role. However, prior to entering into pre-employment trials, Employers should make sure that Employees realise these one shift trials are genuine pre-employment trialsand the employment parties are not in an employment relationship at the time of this one-shift trial. If this is not made clear, Employers might not be able to rely on a 90 days Trial provision clause of an Individual Employment Agreement which permits dismissing an employee within 90 days of the commencement of their employment.

In a recent case considered by the Employment Relations Authority, Mr F claimed that he had been unjustifiably dismissed during his 90 days trial period. The Employment Relations Authority ruled in his favour. The 90 days Trial clause in the Employment Agreement of Mr F proved not enforceable because Mr F had already been previously employed by the same company – although only for a one shift trial which happened 2 weeks before he started in his job permanently. According to Section 67A (3) of the Employment Relations Act “When employment agreement may contain provision for trial period for 90 days or less”, Employeemeans an employee who has not been previously employed by the employer.

The Employment Relations Authority ruled that Mr F had accepted a one shift trial period of work during which his suitability for permanent employment was to be assessed; he performed duties that provided an economic benefit to the employer for which he expected and received remuneration. That meant that the parties had been in an employment relationship at that time. The Employment Relations Authority ruled that the trial provisions of Mr F’s employment agreement were unenforceable and his employer could not rely on them to terminate Mr F’s employment within 90 days. Section 67B(2), which precludes an employee whose employment is terminated pursuant to a trial period from bringing a personal grievance in respect of the dismissal, did not apply.

The Employment Relations Authority ruled the Employer to pay Mr F reimbursement of lost remuneration; compensation for hurt and humiliation arising from his unjustified dismissal and compensation for unfair bargaining.

To avoid any situations like that, prior to entering into one-shift trials, Employers will need to make sure that intensions of both parties are clear to both of them. It will be prudent to put something in writing stating that both parties agree that this is not an employment relationship, it’s a pre-work trial only, intended to assess suitability for a permanent employment.

This is a general advice only, please feel free to contact your employment lawyer on this.