Employee who was terminated before first day of work brings dismissal dispute

In this case the employer raised a jurisdictional objection to an employee’s general protections application involving dismissal by arguing that it could not have dismissed the worker because her employment had not yet commenced.  

The facts in the case involved a casual employee who had been “allocated” but not yet worked their first shift and therefore no wages had been paid. The Commission explained whilst the performance of work and payment of wages would generally be relevant considerations in determining the existence of an employment relationship and the absence of either could suggest no employment relationship, these are not the only factors and all of the surrounding circumstances should be taken into account.

The Commission considered the following factors, amongst others, pointed towards the existence of an employment relationship:

• The signed contract of employment made express reference to an ‘employment relationship’ being established by the contract itself.
• There was evidence indicating the employee had already been considered part of the employer’s workforce, including:
  • the application process and ‘onboarding’ had been completed by the employee;
  • the employee had been added to the employer’s rostering app through which the employer had communicated with the employee; and
  • the employee was being given directions about attendance at mandatory training.  

• From the date of the contract of employment, the contract restricted the employee’s capacity to work for another employer without the employer’s consent.
• The employee had been allocated shifts from 20 to 22 April.

Therefore, taking into account the above circumstances, notwithstanding the agreed fact that the employee had not worked a single shift for the employer, the Commission held that an employment relationship existed.

Key take-away

From this case employers should be mindful an employment relationship may exist before an employee begins actual work for the employer and so an employer may be exposed to legal claims from employees arising from events that occur before they begin their first day of actual work.

Mrs Sonia Argentier v City Perfume Retail Pty Ltd [2023] FWC 1819 (24 July 2023)

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National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.