An Auckland café has been ordered to pay a former front-of-house worker $11,165.79 after the Employment Relations Authority (ERA) found she was unjustifiably dismissed.
The determination, [2026] NZERA 834, is dated 10 November. Stuff reports the café argued two things: that the worker was on a 90-day trial, and that a "thumbs up" emoji she sent by text meant she had agreed to give up her guaranteed hours. The authority rejected both.
The two rules at the centre of the case often trip up small employers and new workers, including migrants in their first New Zealand job.
What happened?
According to Stuff, the worker was hired in early 2025 with agreed normal hours of 25 to 35 hours a week. She started work on 24 February 2025 but did not sign her employment agreement until 1 March, after about three shifts.
On 4 April she told the café's director she would be unavailable for six days. The director replied that she had put her in a casual position. When the worker asked whether she could go back to normal hours the next week, the director replied that she could try but could not guarantee it. The worker answered with a thumbs-up emoji.
On 12 April she was left off a new roster. The director texted that she had decided to hire someone full-time to replace her, and later argued she did not have to give reasons because the worker was still on a 90-day trial.
Why didn't the 90-day trial count?
Because the worker had already started before she signed.
Employment New Zealand, the government's employment information service, says that before a trial period begins, the employer and employee must agree to it, it must be in the employment agreement, and the employee must sign the agreement. "If the employee does not sign the employment agreement before they start work, the trial period is not valid," it says.
ERA member Sarah Blick applied Employment Court precedent that failing to sign before work begins is fatal to a trial provision, Stuff reports.
Other rules for a valid trial, according to Employment New Zealand:
- it can last no more than 90 calendar days
- it must start at the very beginning of the job
- the employee must not have worked for that employer before
- the agreement must say the employer can dismiss during the trial, and that the employee cannot bring a personal grievance about that dismissal, except in some situations.
Even on a valid trial, the employer must give the notice set out in the agreement. Employees on a trial have the same rights as other employees, including being paid for every hour worked.
Can a text or emoji change your hours?
Not easily. Employment New Zealand says hours of work must be agreed in a written employment agreement, and if the agreement sets out hours, the employer cannot change them without the employee's agreement. Any change should be agreed in writing by both sides.
In this case, Stuff reports, the authority found the director's explanation of the casual arrangement was unclear and not enough for such a significant change. A thumbs-up reply did not amount to the worker agreeing to give up her guaranteed hours.
What was she awarded?
The café was ordered to pay $7,000 in compensation for humiliation, loss of dignity and injury to feelings, $3,578.29 in lost wages and $587.50 for one week's notice pay, Stuff reports. The authority found she had been dismissed without warning, discussion or a chance to respond.
It turned down a separate claim of unjustified disadvantage for lack of evidence, and did not impose penalties on the company.
What should workers check?
- Don't start before you sign. That includes "trial shifts". If you are asked to work first and sign later, ask for the agreement now.
- Read the trial clause. If it says "three months", that is longer than 90 days. Ask for advice.
- Keep copies of your agreement, rosters, payslips and messages.
- Answer important texts in words. If your boss suggests changing your hours or making you casual, reply clearly whether you agree, and ask for the change in writing.
- Act within 90 days. Most personal grievances must be raised within 90 days.
Employment New Zealand's free line is 0800 20 90 20. If you are a student or on a work visa, our guide to checking summer jobs and visa conditions covers other things to look at before you start.
And employers?
Government guidance on business.govt.nz says employers must tell a new worker they can get independent advice on the agreement, give them reasonable time to do so, and make sure it is signed before they start work, otherwise a trial period won't be legal. Agreeing a change to hours in writing protects both sides.
