Casual employee dismissed, despite never working a shift

A casual retail employee has won the right to pursue her general protections dismissal claim despite never having the opportunity to perform any work, with the Fair Work Commission confirming that the role being withdrawn two days before her first rostered shift constituted a termination at the initiative of the employer.

The employee first indicated her acceptance of the casual ‘fragrance brand ambassador’ position on 6 April, when a suggested commencement date of 18 April was proposed. Over the course of a fortnight, the casual completed “onboarding” paperwork, including signing an employment contract and downloading the designated rostering app, and was eventually offered shifts on 20, 21 and 22 April.

Before performing her first shift on 20 April, the casual received a reminder via the rostering app stating, “all staff including all new starters that there is a training session on 19 April at 7pm at agence de parfum head office”. When the casual queried the HR Manager on 17 April whether the training session scheduled for 19 April was to be paid time, she was told the session was regarded as “professional development” and would be unpaid. The casual made it clear the next day she would not be attending the unpaid training session.

The employer’s HR Manager followed up a second time on 18 April, reiterating that the “masterclass session” provided a once-a-year “truly beneficial” opportunity, adding that the worker would receive a gift for attending, but the casual remained resolute she would not participate. Within an hour, the worker received another email from the HR manager saying, “With much regret I wish to inform you that our business and brand partners have decided to withdraw the brand ambassador role at this stage from the market”. The email added that the offered role was “no longer available” and apologised that the masterclass session (which the casual had expressly stated she would not be attending) had been “cancelled… last minute”. The casual replied within hours saying, “The way you have fired me, I think that it is not correct. I didn’t ask much, I just wanted things done correctly and by the law, a Mandatory Training or Masterclass should have been paid”. She received notification later that day that rostered shifts for 20, 21 and 22 April had been removed and filed her general protections dismissal application on 9 May.

In determining the casual was eligible to pursue her dismissal claim, Deputy President Roberts rejected the employer’s argument that the casual couldn’t have been dismissed because her employment never commenced. Whilst the Deputy President conceded that “performance of work and payment of wages would generally be relevant considerations in any determination as to the existence of an employment relationship… In this case there are other factors that point to the existence of an employment relationship”.

Deputy President Roberts listed factors including, the finalised employment contract; the completion of the onboarding process; adoption of the employer’s rostering app; and the fact the casual was issued “a number of employment-related communications”, including shift notifications and information about the “mandatory” training session, as confirmation the casual was “by this stage part of the [employer’s] workforce”. The Deputy President also had regard for a term of the employment contract, which restricted the casual’s ability to work for any other business without the employer’s permission, as confirmation that an employment relationship existed on 18 April when the job opportunity was withdrawn.

Finding the casual was an employee, who was dismissed at the initiative of the employer on 18 April 2023, and who had filed her general protections dismissal application within 21 days of the termination, Deputy President Roberts confirmed the matter would be relisted for conference.

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