A recent Fair Work Commission decision outlines the risks on employers purely relying on a contract commencement date as the start of their employment relationship with an employee. 

Despite the common belief that employers have the ability to terminate an employee prior to the commencement date set out in an employment contract, the recent Fair Work Commission decision of Argentier v City Perfume Retail Pty Ltd [2023] FWC 1819 reaffirms that a dismissal hinges on the termination of an employment relationship rather than merely the terms set out in the employment contract.

What happened?

In early April 2023, Mrs. Sonia Argentier (Argentier) applied for a casual Fragrance Brand Ambassador position with City Perfume Retail Pty Ltd (City Perfume). Following an online interview, Argentier received confirmation of her successful application and information about the onboarding process. 

The onboarding process involved downloading the City Perfume’s app ‘Deputy,’ completing required documents, and setting a start date of 18 April 2023. Argentier fully engaged with this process by completing induction forms including bank details, tax information, and superannuation details. She also activated her Deputy account, received and signed her employment contract, and was rostered to commence the following week, with her first shift scheduled for 20 April 2023.

A few days before her first shift, Argentier was asked to attend a training session the day before her first shift. In response, she asked whether the training session would be paid, to which the manager responded it wouldn’t be paid because it was considered “professional development”. The manager also told Argentier she would receive a gift for her attendance. Argentier then declined to attend the training session. Subsequently, the manager notified her the Brand Ambassador role had been withdrawn, and the upcoming training session had been cancelled. Her rostered shifts for the upcoming days were also removed.

Argentier then made a general protections claim against City Perfume, arguing she had been “dismissed” by her former employer, despite the fact that she had never worked her first rostered shift. 

What was the outcome?

The Fair Work Commission (FWC) started out by reiterating the meaning of “dismissed” which has been defined by the Fair Work Act 2009 (FWA) to mean “termination of employment at the initiative of the employer” (s.386(1) of the FWA). “Termination of employment” here is not merely about ending the employment contract, but is intended to capture a much broader concept, being the ending of the actual employment relationship. 

The FWC concluded that despite no actual work or wage payment, Argentier had an  employment relationship with City Perfume which was evidenced by various factors, including: 

  • The employment contract’s language;
  • The applicant’s onboarding process;
  • The use of company tools;
  • Scheduled training; 
  • The shift arrangements;
  • The presence of a contractual term restricting her from working for others; and
  • Argentier’s to-be manager’s ability to allocate her shifts.

Once the FWC established there was an employment relationship between City Perfume and Argentier, it went on to find that the employment relationship had been terminated by City Perfume through a message advising Argentier that the role she had been hired to perform had been withdrawn from the market.

Therefore, it was concluded that Argentier had been “dismissed” by her employer.

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

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