For most employers, casual employment is favoured because of the flexibility it provides – employees are employed as required and have no guarantee of ongoing employment. This flexibility however does not mean that casual employees are not protected from adverse action.
In Argentier v City Perfume Retail Pty Ltd [2023] FWC 1819, the Fair Work Commission (FWC) determined that a casual employee was dismissed from her employment and dismissed the employer’s jurisdictional objection.
In April 2023, the employee applied fora casual position of Brand Ambassador. After she attended the interview, she was advised that she was successful in her application and would have to complete the onboarding process. This included completion of forms and joining an application the employer used to assign rosters – which the employee completed. After signing the employment contract on 12 April 2023, the employee was advised that her onboarding was complete and would be rostered on for work the following week. The employee’s first shift was rostered for 20 April 2023.
Before her first shift, the employer notified the employee that new starters would be required to attend a training session at its head office. On 18 April 2023, after being advised that the training session was unpaid “professional development”, the employee advised the employer she would not be attending. The employer responded that the session was a masterclass and would be beneficial for her own knowledge and while she would not be paid, she would receive a gift. The employee again confirmed that she would not be attending the unpaid training session.
The employer subsequently sent a message to the employee stating that the Brand Ambassador role had been withdrawn and the role was no longer available. The employee’s rostered shifts were also removed.
The employee lodged an application alleging that she was dismissed in contravention of the general protections provisions.
The employer lodged a jurisdictional objection claiming that the employee could not have been “dismissed” because her employment with them had not actually started. The employer’s position was that the employee had not officially started and had not undertaken any duties which she was instructed to perform. The employer also argued that she had not completed her onboarding and induction and had not been given company access.
The employer also argued that there was nothing in writing in which stated that they had dismissed the employee and alternatively, that it was the employee’s own message which suggested that the employee had terminated her own employment.
The FWC found that there was an employment relationship which existed between the employer and employee even though she had not performed any work for the employer. For the FWC, the employment relationship had commenced and had come into effect by 18 April 2023. The employment contract was signed by both parties on 13 April 2023 and stated that the contract was made on 6 April 2023 and would commence on 18 April 2023.
The FWC also found that there was “no doubt” that it was the employer who terminated the employee’s employment, and that the message to the employee was written notice of termination.
The general protections provisions of the Fair Work Act 2009 (Cth) apply to casual employees – which means that they are protected from adverse action (including dismissal from employment) taken because of a prohibited reason. Regular and systematic casual employees may also be protected from unfair dismissal.
Employers should always exercise caution when withdrawing offers of employment or rostered hours of work from casual employees to ensure they are not exposed to claims of adverse action or unfair dismissal.
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