r 8

Form 3

Statement in reply

Employment Relations Act 2000

 

 

Between

 

Helen Mawhinney

Sacked Kiwi

PO BOX 28007 Havelock North 4130      

0508 22 77 99

info@sackedkiwi.co.nz

 And

Sfizio Ltd          

2A Hatton Street

Karori

Wellington

0273573536

kitchen@wadestown.co.nz

 

 

To the applicant

 

And

 

To the Employment Relations Authority

 

•       The respondent’s view in relation to the problem or matter specified in the application is: [state details fully, fairly, and clearly].

 

1.    The respondent considers that:
a) it has acted in good faith;
b) it interviewed Miss Mawhinney and that Miss Mawhinney completed a competency assessment; and
c)  Miss Mawhinney was never hired under a contract of service at Sfizio Ltd and was never an employee of Sfizio Ltd.

 

•       The respondent’s account of the relevant facts is: [state details fully, fairly, and clearly].

 

Timeline:

1.    From time to time Sfizio Ltd advertises for baristas and other employees for both of our locations at Wadestown Kitchen, 104 Wadestown Road and at Sfizio Espresso Bar (Sfizio), 182 Lambton Quay.

2.    Our standard practice is to place advertisements on the website www.Indeed.co.nz and in some of the public groups on Facebook, such as Wellington Jobs, Wellington Hospitality Jobs, Jobs In Wellington, New Zealand, Hutt Valley Buy and Sell, and Vic Deals.

3.    On 30 and 31 July 2017, we (meaning both directors Miss Parfitt and Mr Gregorash) placed advertisements (as you can see in the pictures attached to this document) in Wellington Jobs, Wellington Hospitality Jobs, Viuc Deals and Jobs in Wellington, New Zealand. 

4.    On 2 August 2017, we placed an advertisement for baristas for Wadestown Kitchen and Sfizio on the website www.Indeed.co.nz. A copy of the Indeed advertisement is attached, which shows the date posted as 2 August 2017.

5.    The copy of the advertisement Miss Mawhinney has attached to her papers appears to be from Vic Deals but we cannot tell whether that is accurate as we have been kicked out of that particular group by Miss Mawhinney's Facebook friends and the group owners have deleted all the posts relating to the dispute between Miss Mawhinney and Sfizio Ltd.

6.     At 8:20 am on 2 August 2017, Miss Parfitt (a director of Sfizio Ltd) received a message on Facebook from Miss Mawhinney. The message read:
"Hey Kathy 🙂 I'm super interested in the barista role, I have loads of experience dating quite far back (made my first real coffee at 13) I've recently done a refresher coffee training course with ripe as I was going to work at my mother cafe on days bay (went south as she suffers from mental health issues and I decided working together wasn't going to work out) would love full time Monday to Friday but part time can work too 🙂 I'm very flexible. I'm a very bubbly people person with excellent customer service skills, let me know what you need from me and I'll send it to you"

7.     At 9:35am on 2 August 017, Kathy responded to that text message stating:
"Hi. Thanks for your message 😀 Our cafes are Sfizio on Lambton Quay & Wadestown Kitchen. Curtis the other owner & I would love to get you in to have a chat & make a couple of coffees. Are you free today to come to Wadestown Kitchen, 104 Wadestown Rd, Wadestown?
Cheers Kathy"

8.    A time of 11:00am on 3 August was arranged for the interview (as you can see in the facebook messages attached to this document). Miss Mawhinney asked how long the interview would be and Miss Parfitt responded that Miss Mawhinney should allow an hour.

9.    While the initial interview only takes about 10-15 minutes, we cannot guarantee that we will not be busy at the time that the interviewee comes in so we ask that they allow an hour to be safe.

10.  Miss Parfitt then asked Miss Mawhinney to provide a cv, to which Miss Mawhinney responded "Will do 🙂".

11.   At 11:52am on 2 August 2017, Miss Mawhinney messaged Miss Parfitt again and stated:
"I am super keen to do this trail (or what have you) but surprised that it’s in Wadestown rather than the Lampton Quay location. I have looked into transport and since I don’t have a car at the moment it would take me an hour to get there. Is there a possibility we could meet at the Lampton branch? My sons father would also be able to look after my son for this time as well since he works close by. Thanks 🙂"

12.  We thought this to be an odd message because we were hiring baristas at both locations. We both work full-time at the Wadestown location making catering, food and coffee and it is not possible for us to leave the Wadestown location for interviews. Miss Parfitt responded at 12:18pm saying "No sorry, that's not possible".

13.   At 12:36pm on 2 August 2017, Ms Mawhinney messaged Miss Parfitt again stating:
"Ok I'll see what I can do."

14.  We didn't hear from Miss Mawhinney again that day so we assumed that we wouldn't see Miss Mawhinney the next day.
The Interview

15.  On 3 August 2017, it was a busy Thursday at the cafe and we were working away making food and coffee. Unbeknown to us, Helen had come in with someone, ordered coffee and sat down to have her coffee. At some point after 11:00am, Miss Mawhinney introduced herself to us and we realised that she had made it there for the interview after all despite there being no written confirmation that she was even coming in.

16.  Being that it was busy, we invited Miss Mawhinney to come behind the counter and talk to us while we worked. We asked her a few questions about her background in cafe's and then when there was a break in the espresso machine being used, we asked Miss Mawhinney to make a flat white and a cappuccino.

17.  While we could tell that Miss Mawhinney had used a coffee machine before, her coffee's were not up to a saleable standard for us. If we were not able to offer a pre-employment competency based assessment then Helen would not have been considered further for any role based on that performance.

18.  In the kitchen, we discussed the possibility of Miss Mawhinney undertaking competency based assessment. Mr Gregorash explained to Miss Mawhinney that:
a)   it would be an unpaid assessment;
b)   it was an opportunity for Miss Mawhinney to check us out as much as it was for us to check her out; and
c)   Miss Mawhinney could leave at any stage if Miss Mawhinney was at all unhappy with what she saw.  

19.  At the end of the interview Miss Parfitt suggested that Miss Mawhinney could come in for an assessment on 4 August 2017 at 8:00am. Miss Mawhinney said she had to look into arranging childcare (the same as Miss Mawhinney had done for the interview) and left with her friend.

20.  Miss Mawhinney's interview including making two coffee's lasted approximately 10 minutes. You will see later that Miss Mawhinney claims (including telling the media) that this was a working trial that lasted an hour. Miss Mawhinney was at the cafe for about an hour because she sat down for a coffee with her friend before introducing herself to us. The friend remained there while we interviewed Miss Mawhinney and the pair left together.

21.  An interview typically lasts 10-15 minutes. The purposes of an interview are to quickly meet the applicant, discuss his or her relevant background, and get the applicant to make usually two coffees, a flat white and a cappuccino. Our advertisements require at least 1 year experience of making coffee, however, it is surprising how many applicants we get who claim to have one year but then step up to a coffee machine and clearly have no idea what they are doing. There is no point in going any further with this type of applicant. It would be a waste of our time to get every single applicant in for a full competency assessment.

22. Because the possibility/opportunity for a competency assessment occured in the kitchen as it did, it was not recorded in writing. Typically we will text or email someone and offer her or him an unpaid competency assessment and that means it is in writing. However, because of the circumstances of this case the written record does not exist but at the time the offer was made to do the assessment all the terms were made clear including that it was a chance for Miss Mawhinney to check us out as much as it was an opportunity for us to check her out and that Miss Mawhinney was able to leave if she did not like what she saw. 
The Competency Assessment/Test

23.  There are several reasons for a competency assessment as well as an interview:
a) Making a coffee on the spot in an interview can be nerve-wracking. Typically you have to, while being watched closely by two or more people, make one or two coffees, including being closely watched at how you settle the grinds, how you tamp (compact) the coffee, how long the shot runs for, how much milk you use to froth, how you froth the milk, how you pour the coffee, and how the coffee turns out, including how good any latte art is. Even experienced baristas can struggle with this in an interview situation sometimes.
b) It often assists the applicant to have a longer time during a competency assessment to get used to the machine and be able to display his or her true potential on a different espresso machine than the applicant might be used to.
c) It allows us to assess how an applicant interacts with other staff.
d) It allows us to observe and assess whether an applicant uses their initiative.
e) It allows us to assess the applicants competency in a range of other areas, such as; how an applicant interacts with customers, whether an applicant can carry plates without dropping them, whether the applicant is clumsy, and a range of other different factors which will determine whether we undertake the final step of negotiating a contract and possibly hiring someone.

24.  At 1:32 pm on 3 August 2017, Miss Mawhinney sent Miss Parfitt a message on Facebook stating "Childcare is all sorted so I'll see you around 8am tomorrow 😎".

25.  At 3:21pm on 3 August 2017, Miss Parfitt responded stating "Perfect. See you in the mrng. Cheers Kathy".

26.  On 4 August 2017, Miss Mawhinney came in to Wadestown Kitchen for her competency assessment, arriving at 8:00am as agreed the day before. Miss Mawhinney completed tasks such as:
a) observing the rostered barista;
b) observing Miss Parfitt make food;
c) observing how we serve customers;
d) observing how food was heated and served;
e) learning the till system;
f) making a coffee for herself, Miss Parfitt and the rostered barista;
g) doing the initial coffee shot for a few coffees under the observance of the rostered barista;
h) making a few easy coffees (such as long blacks and americanos);
i) frothing milk a few times under the observance of the rostered barista;
j) serving some customers under the observance of the rostered barista and Miss Parfitt;
k) having a go at making a couple of items of food under the observance of Miss Parfitt; and
l) undertaking other tasks such as clearing tables using her own initiative.

27.  Miss Mawhinney seemed happy to be at Wadestown Kitchen, and she was chatty and pleasant. Leaving early wasn't discussed throughout the day. Miss Mawhinney voluntarily stayed until the end of the day to see the close up process.

28.  At the end of the day, Miss Parfitt had a conversation with Miss Mawhinney to give an assessment of Miss Mawhinney's competency.  Miss Parfitt gave Miss Mawhinney feedback, saying that Miss Mawhinney had started out quite nervous but had become more confident throughout the day.

29.  Miss Parfitt also discussed, however, how Miss Mawhinney's coffee skills were not up to a high enough standard for Sfizio, where we require baristas to consistently and quickly make perfect coffees, as Sfizio is an extremely busy espresso bar - making over a hundred coffees within a short period first thing in the morning.

30.  Miss Parfitt then discussed that at Wadestown Kitchen the pressures are not quite as substantial and that there would be the possibility of working  some shifts at Wadestown Kitchen. Miss Parfitt said a contract would be sent out as soon as possible with an offer of employment.

31.  At that point Miss Mawhinney appeared visibly upset - like tears were forming in her eyes. Just before leaving the cafe, Miss Mawhinney asked about payment for the competency assessment day.  Miss Parfitt responded by saying that the competency assessment was unpaid, and reminded her that this had been discussed with her and made clear at the interview the day before. Miss Mawhinney became upset at this, and said that she had paid for childcare and transport to get to Wadestown that day, and then left.

32.   At 7:47pm on 4 August 2017, Miss Parfitt followed up with a text message to Miss Mawhinney stating:
"Hi Helen
Thanks so much for today, it was nice to work with you. You seemed to be pretty comfortable & more confident by the end of the day. We just need to work a little bit on perfecting your barista skills. I'm really sorry if there was confusion about the day being an unpaid trial. It's standard practice for us before we hire someone. I've talked with Curtis, & we would like to offer you a job with us, working at Wadestown. We'll send a contract out over the weekend if you are keen.
Thanks Kathy :-)"

33.   We didn't hear back from Helen until Tuesday 8 August. At 9:45am on 8 August 2017, Miss Mawhinney sent a text message to Miss Parfitt Stating:
"Hello kathy sorry I didn't respond sooner, I got busy researching employment rights etc because what happened on Friday was actually horrendous. That 8 hour shift costed me a lot of money and time and I'm not ok with not being paid. I decline the job offer and moving forward in demand you pay me for this completed shift. As A) you did not tell me it was an unpaid trial (you used the term "work a full shift" with no indication of it being under volunteer/trial basis and B) It was not indicated in writing as it should have been and C) I carried out services that benefitted (sic) your business I was legally considered an employee and am owed money."

34.   In a separate text but at the same date and time, Miss Mawhinney texted:
"You have until this coming Friday (11/08/17)  to pay this into 38-9017-0395716-00 a/c name H A Mawhinney. If you do not pay this is (sic) will move forward with mediation from MBIE. Thanks, Helen."

35.   At 11:02am on Tuesday 8 August 2017, Mr Gregorash responded (because Miss Parfitt was busy) to Miss Mawhinney by email stating:
"Hi Helen

Thank you for your txt to Kathy today.

In response, I'm sorry but we don't pay for trial days. Trial days are there so that we can each figure out whether the job would be a good fit for the person. On a trial day you are not a productive member of the team and you can leave whenever you like. It is not a day of work. You are also not considered to be an employee before we ask you to be one. I did explain that it was an unpaid trial day (we never pay for trial days) so I am sorry if you did not hear me correctly or misunderstood.

I understand that you have declined our job offer but we also just want to formally rescind the job offer just so everything is clear.

We are sorry things did not work out and we wish you well in the future.

Kind regards
Curtis"

36.    At 11:10am on Tuesday 8 August 2017, Miss Mawhinney responded by email stating:
"Alright I'll be taking this further then"

37.    At 11:39am on Tuesday 8 August 2017, Miss Mawhinney sent a further email with the following text:
"As I've discussed with Kathy there was no mention of an unpaid trial. If you you had said that I would never have agreed to this nor would I have stayed 8 hours -the childcare and transport costs certainly wouldn't be worth it. I was very much a productive member of the team that day and was never told I could leave whenever. I was given a meal break and served customers all day.*

I understand mediation with MBIE is voluntary and you're within your right to decline however if you do decide to decline in will move forward to the ERA (employment rights association) and take this even further.

Thanks, Helen Mawhinney.

***Follow these key guidelines to reduce your risk when using a pre-employment work trial:
Mere observations of the operation and/or the use of practical tests during the recruitment process are unlikely to create an employment relationship. For example, it may be reasonable to require an applicant for a position as an administrator to perform a set typing exercise designed for the purpose of assessing the candidate’s ability.
Employers who use work trials should make it explicitly clear (in writing) that this is a pre-employment assessment, that the prospective employee will not receive any remuneration and that no offer of employment has yet been made. It would be prudent to require prospective employees to acknowledge    and sign acceptance of this. Employers should also advise that any future offer of employment will be conditional on satisfactory completion of the recruitment process (eg reference and/or criminal records check, etc).
Keep any work trial short in duration and require the prospective employee to undertake “mock” work — that is, not “real” work for “real” customers (or unpaid work shifts).
Employers should carefully tailor the work trial so that candidates are tested on particular tasks central to the position. Employers place themselves at risk of creating an employment relationship where they gain an economic or other business or operational benefit from the prospective employee’s activity. The more that applicants “walk, talk and act” as they would in a “live” work environment if they were to continue working for the employer, the more likely the employer will be found to have crossed the line.
Do not call it a “work trial”. Call it a “pre-employment assessment”, “evaluation” or “test”. Applicants may otherwise mistakenly assume that they are subject to a trial period under the ERA. There should be no room for confusion
You may wish to follow proper protocol in future to avoid such issues reoccurring."

38.   At 12:20pm on Tuesday 8 August 2017, Mr Gregorash sent en email to Miss Mawhinney stating:
"Hi Helen
You will obviously do what you want, but we will decline mediation because we are very clear on our position. My background is in the law so I know our rights very well. We've had staff try to use this procedure to bully us in the past and we have never paid out.
Sorry it's come to this but obviously it's good to know now that we wouldn't have been a good fit.
Cheers"

39.  At 12:24pm Miss Mawhinney sent another email stating:
"If your so well verses (sic) in the law you should know everything should always be in writing. You'll be hearing from me again soon."

40.  We had continued to deal with Miss Mawhinney in good faith, even when Miss Mawhinney began issuing demands of money payments and threats if we didn't follow through. Going to the ERA should have been the end of it.

At this point things turned ugly

41.  However, that was not the end of it. There is no immediate evidence of the next several paragraphs, however, with some difficulty it could likely still be sourced from Facebook, Google and Vodafone. All of the:
a) text messages to Miss Parfitt;
b) text messages to Mr Gregorash;
c) Facebook messages to Miss Parfitt;
d) Facebook messages to Mr Gregorash;
e) reviews on the Sfizio Facebook page;
f) reviews on the Wadestown Kitchen Facebook page;
g) Google reviews for Sfizio; and
g) Google reviews for Wadestown Kitchen,
were swiftly deleted by Mr Gregorash so as to reduce the amount of undeserved harm that Miss Mawhinney was inflicting on our staff, on our family, on our friends, and on us.

42.  On the evening of August 8 2017, Miss Parfitt received a Facebook message from a stranger asking if we will  do a paid trial.  We immediately checked to see if this person was listed as a friend on Miss Mawhinney's Facebook page and we were correct in our assumption, the person did appear in Miss Mawhinney's Facebook friends list. We simply responded with something like "No we don't do paid trials sorry".

43.  That same evening we started receiving text and Facebook messages from Miss Mawhinney's Facebook friends that were generally to the effect that what we had done to Miss Mawhinney was awful, that we were awful people, that they were going to come in to our cafe's and tell all of our staff, etc. We checked several names against Miss Mawhinney's friends list and they also appeared on her friends list. Most of the messages were full of profanity, threats and other disgusting material.  It appears then that Miss Mawhinney went on the public Facebook groups that we advertise on and posted messages about how we had told Miss Mawhinney that we would pay her and then didn't, about how we had offered her a job at Sfizio and then didn't follow through, how we had told her it was an 8 hour work day that she was required for and then we refused to pay, about how she had significant childcare costs and about how awful we were to her. Mr Gregorash spent the night and next day deleting all of the profane, hateful, and threatening messsages. Unfortunately, at this point Mr Gregorash got upset and began to retaliate to some of the messages. However, that clearly just 'fuelled the fire' and Mr Gregorash quickly decided to delete his messages. The option to leave a review on Facebook has had to be completely removed - RIP all of our 5 star reviews.

44.   At 10:00am on 9 August 2017, Mr Gregorash received a text message from Tess Nichol (a reporter from the NZ Herald) stating:
"Hi Curtis, i'm (sic) a reporter with the NZ Herald, I would like to please speak with you urgently about a story in (sic) writing regarding a woman who worked an eight hour shift unpaid trial with you at Sfizio. I'd like to hear your side of the story so let me know when you're free and I will call you back. Tess Nichol."

45.   At 10:13am Mr Gregorash responded to the text from Miss Nichol stating:
"It is false that the girl worked 8 hours. It is false that it was a day of work. The girl was told she could leave whenever she wanted. The trial was to see if the girl was a good fit and we offered her a job. The girl declined the job and went crazy. The girl and her family (so she told us) suffer from mental illness [this is in Miss Mawhinney's email to us dated 8:20 am on 2 August 2017] so I would be very cautious to say anything to or about her." 
[comment added]

46.  Miss Nichol sent three more text messages to Mr Gregorash asking for further details, all of which Mr Gregorash did not respond to.

47.   At 10:46am on 9 August 2017, we received an email from Caroline Brunner at TVNZ stating:
"Hi Kathy and Curtis,

My name is Caroline Bruner, I am writing on behalf of Shalleen Hern (who contacted you by phone this morning) of 1 News.
 
We would like to interview you please about allegations made by Helen Mawhinney about her experience at Wadestown Kitchen.
 
Here is what she said:
“I'm compiling a case against the owners/operators of wadestown kitchen and sfizio (Lambton Quay espresso bar) for falsely leading me to believe I had a new job then tricking me into working an 8 hour shift unpaid (waited until the end of the shift to say it was unpaid knowing full well I didn't know this and knowing I had paid for childcare and transport for the entire day) if you have experienced something similar please contact me with som...e details, I'm going to lodge a case with the employment rights authority tonight so asap please”
 
We would like to give you the opportunity to respond and look forward to hearing from you.
 
Sincerely,
Caroline"
(emphasis added)

48.  We didn't think it was even a story that New Zealand's national newspapers would be interested in so at 11:07am on 9 August 2017, we responded "We offered a girl a job, she declined it and went crazy on social media."

49.  On 9 August 2017, some of Miss Mawhinney's Facebook friends followed up on their threats and came in to Sfizio and swore at our staff, yelled at our staff, threatened our staff, and loitered in front of the door to deter customers.

50.  As soon as we learned of this behaviour Mr Gregorash instructed Sfizio staff to close the cafe for the day and go home early.

51.   On 9 August around lunch time, Miss Nichol from the NZ Herald ran a story http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11900791. This furthered the issues we were already experiencing but Sfizio was already closed for the day when the Newspaper story came out. We don't know what Miss Mawhinney told Miss Nichol but the article included lines such as:
"A young mum is fuming after working all day at a Wellington cafe only to be told afterward she wouldn't be getting paid.

Helen Mawhinney, 25, spent $70 on childcare and transport costs to work eight hours at the Wadestown Kitchen cafe last Friday, returning for a full shift after doing a one-hour trial the day before.

The first trial had gone well and she thought she'd got a job out of it, Mawhinney said.
"I celebrated, I went out for KFC and everything."

52.  Wadestown Kitchen is in a good suburb out of the city center so it did not experience the same issues as Sfizio, which is in the heart of Lambton Quay and easily reachable.

53.  Similar behaviour carried on for Sfizio on Friday 10 August 2017, so staff were instructed to close the doors if it got bad, not to be alone in the store, and to call the Police and Mr Gregorash if anything happened.

54.  At that stage Mr Gregorash reported the behaviour to the NZ Police. Luckily Sfizio is closed on the weekends and the behaviour only occurred rarely after that.

55.  We later learned that one of our staff at Sfizio was in tears in the back room from the treatment received by Miss Mawhinney's Facebook friends that was incited by Miss Mawhinney.

The Applicable Law and our Comments

56.  It seems helpful to first address the terminology around trials, work-tests, competency assessments, because you can call something whatever you like but what matters is how it is carried out, not the name you give it. In Painter v Epic Hair Design [2016] NZERA Christchurch 112, at para [5] the ERA refers to a "pre-employment test". Footnote 1 to para [5] states:
"The word used in the evidence was "trial", but in order to avoid confusion between that three hour trial and the 90 day trial, I shall use the word "test" to indicate the three hour trial that took place as part of the interview process."

57.  In this document I have used the phrase competency assessment because that is what we do when we get an applicant in for something more than a 10 minute interview.

58.  We have considered Salad Bowl Ltd v Amberleigh Howe-Thornley Salad Bowl [2013] NZEmpC 152 and Luke Keirsey v Betty White Ltd [2014] NZERA Wgtn 137 (involving the Spruce Goose in Wellington). There are many differences between our case and these cases, in which applicants who undertook a trial were basically used as free labour.

Unpaid competency assessments are lawful and do not make you an employee

59.  Several employment law cases have held that unpaid competency assessments are lawful. In the Salad Bowl case [para 107] CJ Colgan recognises that pre-work tests benefit employees too and that that case was at “one end of a potentially very broad spectrum”.  We have heard stories from baristas who work for us that they have had up to 7 days of pre-employment trials at other cafe's in Wellington.

60.  The Citizens Advice Bureau desribes pre-work tests on it’s website as follows:
"http://www.cab.org.nz/vat/eb/ea/Pages/Trialperiods.aspx#8:
When I applied for a job at a café I was asked to work unpaid for an hour as part of the interview process. Is this legal?

It’s common (and legal) for some types of employers (mostly in the hospitality industry) to ask a job applicant to do a short “trial run” to help the employer decide whether to hire them, as part of the job interview process. 

If, as part of your job application, you are asked to do some work to show your suitability for the job, it’s very important for both parties to be clear as to what to expect. 

For example it should be clear:
* that it is a work test, the purpose of which is to allow the employer to assess your ability to do the job (and not an offer of employment) 
* what exactly the work test consists of e.g. cook something from the café menu for the employer, if you’ve applied for a chef’s position. 

It’s not illegal for an employer to ask a prospective employee to perform a short, unpaid work test to help them decide whether you are the right person for the job.  However, if you have reason to believe that you have been effectively working as an employee then you could make a claim for all of the minimum employment rights.

Some of the factors that might determine that you are effectively an employee include:

* The kind of work you did as part of your work test was of commercial benefit to the employer e.g. instead of asking you to make the employer a cappuccino to test your barista skills, they asked you to work a complete shift alongside the staff
* You were paid for your time or expected to be paid  
* Something the employer told you led you to believe they had given you a job offer

If you want to be fairly confident that an employer isn’t simply trying to get free labour from job applicants, it’s worth asking around to get an idea as to whether people who have performed unpaid work tests at that particular business have tended to get employed as a result. 

If you are not sure what your rights are in a situation like this, contact the Ministry of Business, Innovation and Employment’s workplace contact centre on 0800 20 90 20. You can also contact Unite or E Tū."
(emphasis added)
 

61.  It appears that some employment cases, and some NGO sources, suggest that pre-work testing is mainly a hospitality issue. This is untrue. Many professional industries use pre-employment testing and competency based assessments in the employment process.

62.  Companies in many industries have "away days" where several prospective employees go in for the day and conduct testing and have interaction groups. Judges test potential law clerks, Law firms test law graduates, scientific firms, tech companies and so on.

63.  Removal of the pre-work test would mean we would have to hire an applicant, have them change their lives, test them and then let them go right away under the 90 day trial provisions if they didn’t meet standards that we could have easily assessed in a competency assessment.
What is the test for a lawful competency assessment then?

64.  The Citizens Advice Bureau suggests that there are 3 factors:
a) whether there was a commercial benefit to the work;
b) whether you were paid; and
c) anything else the employer may have said to you.

65.  Those factors appear to align with the recent case law on trial periods so those are the factors we will address.
Commercial benefit

66.  When we have a potential barista come in for a competency assessment we always have the regular staff rostered on. That means, whether the person doing the assessment makes a coffee for a customer or serves a real customer, we still receive no commercial benefit because we are paying for the regularly rostered barista to be working anyway. Our costs are the same so there is no commercial benefit.

67.  The applicant is not used as a replacement staff member. When a competency assessment is offered, the applicant is told that the assessment is a chance for us to check them out as much as it is for them to check us out and that if they don't like what they see they can leave at any time. We are always covered because we always have regular staff rostered on during an assessment.

68.  Applicants completing assessments spend a good deal of the time simply observing. Observing how coffee is made, observing how we serve customers, observing how the till works, observing how food is heated up, observing where everything is kept.

69.  Once the person has  observed everything, that person will usually be shown how the till system works first - because in our cafe the barista  also serves, does dishes, etc (as do the owners). It's a small cafe that is usually run by two or three people.

70.  As mentioned above any tasks undertaken by the applicant are closely monitored by other staff or owners. Applicants are never left to just work.

71.  Applicants are not asked to clean or do lots of dishes, but we do take into account a person's initiative if they choose to help out in those areas during his or her assessment.
Payment

72.  In this case, Miss Mawhinney was not paid. Oddly, that is her main concern and reason for this case. Miss Mawhinney considers she should have been paid for the competency assessment but then that would have led to more of a case that it was an employment situation rather than a competency assessment.
Anything else the employer said

73.  We have been very consistent throughout all of our communications with Miss Mawhinney, and with everyone that we offer the opportunity to do a competency assessment to, that:
a)   competency assessments are unpaid - no exceptions. If an applicant is not willing to do a competency assessment and we have questions about his or her competency we will go no  further with that applicant;
b)   a competency assessment is as much of a chance for the applicant to check us out as it is for us to check the applicant out; and
c)   the applicant can leave at any stage - we always have regular staff rostered on so we are always covered.  
Whether people who are offered asessments also get job offers

74.  Whether people who are offered asessments also get job offers was suggested by the Citizens Advice Bureau as something to check out. While this criteria would normally be very difficult to show, in this case Miss Mawhinney was offered a job but turned it down.

75.  We still struggle with the reasons why Miss Mawhinney went through this whole process, got offered a job, turned down the job, and then caused all of these problems. All we can think is that possibly Miss Mawhinney wanted a job at Sfizio but then got upset when she was told she was not experienced enough for that role and offered a job at Wadestown instead.

 

•       The respondent makes the following comments and supplies the following further information: [state details fully, fairly, and clearly].

 

Costs - if we could claim for all the humiliation, loss of dignity, and injury (and damage to business) that Miss Mawhinney has caused to our staff, our family, our friends, our business the amount would be in the hundreds of thousands of dollars.

 

As it is we would like to claim for all the actual and reasonable costs that we have incurred in relation to this application, including Mr Gregorash's time away from the cafe businesses acounted at Mr Gregorash's consultancy rate of $300 per hour.

 

•       I attach copies of the applicable employment agreement and the following documents that I think are relevant to the problem or matter:*

 

…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

 

*List all the documents or letters that you wish to rely on, or documents required under other legislation, etc.

 

 

Mediation

 

5    Have the parties tried to resolve this problem or matter by using mediation services provided by the Ministry of Business, Innovation, and Employment? No*

*Select one.

 

6    Have the parties tried to resolve this problem or matter by using mediation services provided by someone other than the Ministry of Business, Innovation, and Employment? No*     *Select one.

 

7    Have you, the respondent, taken any other steps of any kind to resolve the problem or matter? No*      *Select one.

 

If the answer to this question is “Yes”, specify the other steps taken: [state details fully but concisely].

 

………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………

 

8    If you, the respondent, have answered “No” to both the question in paragraph 5 and the question in paragraph 6, please indicate why you have not used mediation to try to resolve the problem or matter: [state details fully but concisely].

 

We refuse to engage in any mediation with the applicant and wish to have as little to do with her as possible.

 

 

 

Address for service

 

9      This application is lodged by Curtis Gregorash  on behalf of Sfizio Ltd………

 

 

10   The respondent’s address for service is ...........2A Hatton Street, Karori, Wellington................. telephone number is ………04 473 4916……  fax number for service is…………….…………. document exchange number for service is…………………… and email address for service is* kitchen@wadestown.co.nz telephone number and a fax number, a document exchange number, or an email address is optional.

 

 

Date: ……20/09/17………

Signature:……C P Gregorash….

 (respondent)