The Advocate | Issue 370 | February 2026

Offer and Acceptance of Employment

On 11 December 2023, LJT was offered and accepted the position of Head Chef with MKP Ltd, signing an Individual Employment Agreement confirming a start date of 8 January 2024. 

While the start date was set for 8 January 2024, LJT began working almost immediately after signing the agreement. Between 12 December 2023 and 7 January 2024, LJT worked with the General Manager in preparation for the restaurant launch. This included tasks such as menu development, equipment decisions, supplier engagement, and staffing.

Contractor or Employee

The company maintained that LJT was merely an independent contractor during the Interim Period and that his employment did not begin until 8 January 2024. During this period LJT invoiced for his work, and MKP paid the invoices without reviewing the details.

The restaurant opened in mid‑February 2024. On 3 April 2024, following a complaint from a kitchen employee, MKP dismissed LJT under the 90‑day trial period provision in his agreement. LJT claimed that he was unjustifiably dismissed and/or  unjustifiably disadvantaged, (as well as other claims in respect of minimum wage and wage payment obligations). 

The claim of unjustified dismissal was made on the basis LJT also claimed that he was an employee prior to 8 January 2024, in December 2023, which meant that he was dismissed outside his first 90 days of employment (so the trial period had finished).

The ERA firstly addressed the status of LJT, i.e. was he a contractor or an employee before 8 January 2024.  The Authority applied the principles provided in section 6 of the Employment Relations Act 2000 and case law, to determine the “real nature of the relationship”.

MKP’s argument was that LJT invoiced MKP and there were no specific requirements for LJT to work, as the restaurant was not operating and any tasks were in preparation only.  However, the ERA determined these factors were outweighed by the evidence.  The key findings included the following.

• Integration: LJT was introduced to suppliers and potential staff as the Head Chef and given a work email address. His work was indistinguishable from his later duties.
• Control:  While he had flexibility, this was attributed to the General Manager’s relaxed management style rather than contractor autonomy.
• Economic reality: His work benefited MKP Ltd alone, and he took no commercial risk.
• Intent:  Emails and messages showed both parties consistently referred to an 8 January start date for official employment but behaved as if he were already part of the team. LJT had signed an employment agreement on 11 December 2023. 

The ERA concluded that LJT was an employee from 20 December 2023, the date he first invoiced for work. Because employment began before 8 January 2024, the 90‑day trial period could not be relied upon to terminate LJT’s employment on 3 April 2024, as this was outside of the 90-day period.

Dismissal

Accordingly, MKP’s reliance on the trial period to dismiss LJT on 3 April 2024 was found to be unjustified. MKP was therefore required to justify its decision to dismiss, and in this regard, the ERA found multiple substantive and procedural defects:

•   No advance notice of the meeting.

•   No opportunity to seek advice or support.

•   No disclosure of the allegations.

•   A predetermined decision prior to meeting with him.

•   Failure to conduct any fair inquiry into the complaint.

As a result, the ERA determined that LJT was unjustifiably dismissed.

The ERA ordered MKP to pay $10,500 compensation, which was reduced by $1,500 for contributory conduct, and approximately $6,500 lost remuneration.

Conclusion

The determination emphasises the importance of properly defining working relationships and complying with and monitoring any 90-day trial period. Despite the informal environment of a start‑up restaurant, MKP’s failure to correctly classify employment and its flawed dismissal process resulted in clear legal liability. The case serves as a cautionary example of the risks employers face when taking an informal approach to contractual relationships, and trial periods, which will always be interpreted strictly by the Courts.