A recent case of King v Off the Wall Construction Ltd [2026] NZERA 14 (8 January 2026) clarifies that work trial days can be regarded as employment. The case is a useful reminder of the care employers need to take when placing an employee on a 90-day trial period, as any previous work undertaken for the employer may invalidate the trial provision.
On 16 August 2023, Mr King interviewed for a role with Off the Wall Construction Ltd (OTW). The following day, he received an employment agreement containing a trial period clause and was asked whether he would like to complete a day's work for cash on 18 August 2023. Mr King agreed and was paid $350 for the work.
On 22 August 2023, Mr King commenced his permanent role after signing the employment agreement.
During his employment, an incident occurred where Mr King was instructed to wait at the work yard but left after approximately 30 minutes without informing anyone of his whereabouts. Mr King later explained that he did not contact Mr Du Plessis, one of the owners of OTW, or any other staff members because he did not have sufficient credit on his phone to send a text message.
On 15 November 2023, Mr and Mrs Du Plessis met with Mr King to discuss the incident. Following a discussion of approximately 20 minutes, they advised him that his employment was being terminated under the trial period provision.
The key dispute was whether Mr King had already been employed by OTW when he completed paid work on 18 August 2023. Both parties accepted that the work was intended to demonstrate Mr King's skills and allow OTW to assess how he worked alongside Mr Du Plessis.
The Employment Relations Act 2000 permits a trial period to be included in a written employment agreement only where the employee has not been previously employed by the employer. Previous Employment Court decisions have interpreted "previously employed" strictly and have found that work trial opportunities used to assess a person's suitability for employment can constitute prior employment.
OTW argued that Mr King worked as an independent contractor on 18 August 2023 and was paid in cash rather than through the payroll system. Accordingly, it claimed he was a new employee when he commenced work on 22 August 2023 and that the 90-day trial period applied.
The Employment Relations Authority (ERA) determined that Mr King's employment effectively began on 18 August 2023.
The ERA found that Mr King was not operating as an independent contractor. The work was performed for a client of OTW, and Mr King had no direct contact with, or knowledge of, the client. Mr Du Plessis directed the work, communicated the time and place of work, and approved the work completed on the day.
The ERA also noted that there had been no discussions with Mr King before the work was performed to explain that he would be engaged as an independent contractor. Nor had OTW explained that this arrangement was intended to preserve its ability to impose a trial period if employment subsequently commenced.
Significantly, the ERA placed considerable weight on the fact that OTW used the opportunity to assess Mr King's suitability for employment. As a result, it concluded that Mr King had been previously employed by OTW from 18 August 2023, meaning the 90-day trial period contained in the employment agreement signed on 22 August 2023 was invalid.
Mr and Mrs Du Plessis also claimed that Mr King had become difficult to employ because he refused to work with other staff members, was unreliable, and was difficult to contact. However, these concerns had not been raised with Mr King before his dismissal. OTW also failed to provide him with a reasonable opportunity to respond to the concerns or genuinely consider any explanation he may have offered.
The ERA concluded that Mr King had been unjustifiably dismissed and awarded him:
This case demonstrates how costly it can be for employers who do not correctly apply 90-day trial period provisions. Employers should take particular care when arranging work trials or assessment days before employment begins, as these may unintentionally create an employment relationship and invalidate a trial period.
For more information about any aspect of 90-day trial periods or employment processes, please contact Michael Pollard at hradvice@businesscanterbury.co.nz.