Can an employee be dismissed before starting work?
To access remedies for dismissal of employment under the Fair Work Act 2009 (Cth), there needs to be a termination of the employee claimant’s employment at the initiative of the employer.
What needs to be terminated is the employment relationship. The mere termination of the employment contract does not amount dismissal if the employment relationship endures (albeit an employment relationship cannot continue for long without an underpinning employment contract).
An employment contract and an employment relationship can come into existence at different times. Often, but not always, the contract precedes the employment relationship or the commencement of work. What if the parties make an employment contract but the employer prevents the employee from starting their first shift?
These facts were considered by the Fair Work Commission (FWC) in Argentier v City Perfume Retail Pty Ltd (2023) for the purposes of determining whether the employee had made a valid dismissal-related jurisdiction claim.
In this case, a written employment contract was made and was stated to commence in 12 days’ time. The employee completed relevant on-boarding documents and she was rostered for her first shift through a rostering app. The employee was then asked to attend ‘mandatory’ training.
The employee refused to attend the training after she learned it was unpaid. The employer responded by “withdrawing the role from the market”.
For the following reasons, the FWC considered the employer’s actions had the effect of terminating the employment relationship:
1. After signing of the employment contract, the employee completed the on-boarding process, was issued various directions in relation to client management from the employer and was rostered to work her first shift. She was being treated as part of the employer’s workforce.
2. The employment contract restricted her from work for other employers during and after the cessation of the contract.
3. The employee was required to confirm her attendance at a mandatory training, a requirement that was issued to other employees.
Based on these factors, the FWC determined that an employment relationship between the employee and employer existed. When the employer informed the employee of the withdrawal of her position, this amounted to a written notice of employment termination.
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