Does an employment relationship come into existence if an employee is yet to commence their first day of work
Authored by Adam Rich.
Ordinarily an employment relationship comes into existence once the offer of employment is made, the offer is accepted and the employee commences work in the employer’s workplace and receives remuneration for completing such work.
However, in the recent decision of Mrs Sonia Argentier v City Perfume Retail Pty Ltd [2023] FWC 1819, the Fair Work Commission (FWC) determined that the existence of the employment relationship came into effect prior to the employee actually commencing any shifts with the employer and, as such, the employee was capable of being dismissed.
Relevant Facts
The employee was dismissed prior to commencement of her first rostered shift and she subsequently lodged a General Protections Termination claim in the FWC. The issue to be determined was whether the employee was actually ‘dismissed’ given she had not completed any work for the employer and had not yet received any remuneration for such work.
The employer argued that she was unable to be officially dismissed because she had not yet completed any work for the employer. However, the FWC determined that the employment relationship had come into existence due to the employee completing an induction with the employer and receiving a roster outlining her working shifts. Therefore, the employee was able to be dismissed.
Another relevant issue in this matter was whether the employee required an extension of time to lodge her claim. It was argued that the employee’s 21-day time frame to bring an application pursuant to section 366 of the Act had expired. The FWC held that the day on which the employee was dismissed is not included in the 21-day time frame.
Takeaways
This turn of events has the impact of leaving employers exposed to dismissal claims under the Fair Work Act 2009 (the Act). While the facts of every case will differ, it is important for employers to be aware that it is possible for an employee to be dismissed even where they have not yet commenced any work nor received remuneration for completing any work.
The takeaway for employees is that there is some clarity as to the tight time frame involved in issuing an application with the FWC after they have been dismissed. Essentially, the 21-day time frame to bring a claim only commences for employees the day after their employment has been dismissed.
