A Wellington cafe worker has been awarded nearly $9000 after she worked a full shift only to be told afterward it was an unpaid trial.
HR Matters Tip:
"Unpaid Trials" are a minefield... stay away from them and always provide an Individual Employment Agreement (with a valid trial provision included) at least a day before you require a new employee to start - even for a trial!
Helen Mawhinney, who worked eight hours at Sfizio Limited's Wadestown Kitchen on August 4, 2017, went to the Employment Relations Authority (ERA) claiming she had been employed by Sfizio and was constructively dismissed.
Sfizio denied Mawhinney's allegations, alleging she had agreed to undertake an unpaid competency assessment over a portion of a day in the hope of obtaining a position at the cafe.
According to evidence heard by the authority, Mawhinney meet with Sfizio directors Kathy Parfitt and Curtis Gregorash on August 3, 2017, after responding to a job advertisement for an experienced barista.
At the end of the interview it was agreed Mawhinney would attend the Wadestown Kitchen cafe the next day, the authority heard.
Mawhinney told the authority she worked a full shift on August 4, from 8am to 4pm, where she undertook a range of tasks.
At the end of the day when the cafe was closed, Mawhinney alleges she asked Parfitt whether she should give her bank account number so she could be paid for the day, only for Parfitt to reply: "Oh, did Curtis not tell you? This was an unpaid trial."
Mawhinney told the authority she was upset by what she heard and informed Parfitt she had incurred childcare and travel costs to attend the cafe for the day.
Later that evening Parfitt sent Mawhinney a text message apologising for any "confusion" about the day being an unpaid trial. At the conclusion of the text Mawhinney was offered a job working at Wadestown.
Mawhinney replied by text message four days later (August 8) to decline the job and demanded she be paid for her completed shift, advising Sfizio they had till the end of the week to pay her or she would pursue mediation.
This time Gregorash replied, reiterating that they don't pay for trial days, claiming those on trial are not a "productive member of the team and you can leave whenever you like. It is not a day of work."
Gregorash added that they were also formally rescinding the job offer.
When giving evidence to the authority, Gregorash said Sfizio never offers employment to a prospective employee before s/he undertakes a competency assessment.
But he accepted that arrangements around Mawhinney's attendance at the cafe on August 4 had not been recorded in writing.
In contrast, Mawhinney told the authority that at the end of the interview Parfitt told her she was "exactly what we are looking for" and that they could "give you 30 hours per week but the work might be stretched between the two cafes."
Mawhinney alleges she was told by Parfitt "to come in tomorrow and work a full shift starting 8am and finishing around 3.30pm" and that she believed the request to work a "full shift" meant she had gotten the job.
In the authority's determination, Michele Ryan, a member of the ERA, said she preferred the evidence given by Mawhinney, and was not satisfied that those matters surrounding the August 4 shift were conveyed to Mawhinney by Sfizio.
Ryan added that the line between Mawhinney participating in a competency assessment and having her engage in work was crossed, and that work performed by Mawhinney contributed to the business and provided it with an economic benefit.
After establishing Mawhinney was indeed an employee of Sfizio, the authority ruled Sfizio's actions amounted to constructive dismissal.
Mawhinney was awarded $7000 compensation, $1890 (gross) for four weeks' notice and $119.07 (gross) for her work performed on August 4.
- Full article: https://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=12201119