Posted on: Jan 25, 2013

Volunteers are expressly excluded from the definition of “employee” by s 6 of the Employment Relations Act 2000. A volunteer worker is not an “employee” because some form of hire or reward must be present. However, if a worker is working as a “volunteer” in order to get a job then the worker falls within the definition of “employee” because he or she is a person intending to work. If the volunteer is in reality an employee then he or she is entitled to bring a grievance for an unjustified dismissal.

In Qin v Trust Worthy Automotive Ltd [2012] NZERA Auckland 330, Trust Worthy Automotive Ltd (TW) denied that Mr Qin was its employee. It said that it had agreed to hire Qin if Qin satisfactorily completed a probationary week during which Qin would be a volunteer and would not be paid. TW said it employed all new staff on an initial week as volunteers and only after the successful completion of that week were they offered employment. Qin argued that he had become an employee and was unjustifiably dismissed after the first week of work. The Employment Relations Authority noted that the definition of “employee” in s 6 includes “a person intending to work” and it concluded Qin was an employee and was not a volunteer.

The Authority found Qin had been unjustifiably dismissed and was entitled to wages for the first week subject to issues of contribution. It found Qin had contributed 100% to the situation and awarded no remedies. The Authority admonished TW in relation to its hiring practices and said that in the future employees should be hired for a probationary period in accordance with s 67A of the Act.

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