Case Volunteer Employee Intending Work

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.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Subscribe to Newsletter

Changes

Changes

After recently assisting clients from different industries with different types of changes to their businesses, in both adding and removing roles or simply changing duties for some employees, I reflected on my own work history and the changes I had experienced over the last 40 years, including reference points at different stages of my life and how they impacted decisions I made or how I viewed change…

Read More
Modern Slavery Consultation Paper released

Modern Slavery Consultation Paper released

MBIE has recently released a consultation paper on Modern Slavery and are seeking feedback on a proposed legislative response to modern slavery and worker exploitation, forced labour, and people trafficking. The aim of the legislation is “to achieve freedom, fairness and dignity… and to address modern slavery and worker exploitation, both in New Zealand and internationally.” Submissions for consultation are open until 07 June 2022. Make sure you have your say.

Read More
The Great Merger

The Great Merger

Eight months ago, I joined Three60 Consult just as Auckland went into Lockdown. Like a lot of us, I thought it would be a short, sharp COVID battle and I remember optimistically suggesting to my boss that we push my start date out for a week.  Thank goodness she rejected my offer! Starting a new job in lockdown had its challenges, but returning to the office after an extended period, as many of us have found, presented just as many. It was a full six months after my start date before I finally sat at my desk. Even then, the emergence of Omicron meant the whole team was not able to come together. Rather, we worked in mini team bubbles. Today as I write, eight months have passed since my start date and I’m finally seeing the full team come together on a more regular basis.

Read More
PREV NEXT