In what is a novel case before the Fair Work Commission, an adverse action claim has been brought by an individual who was offered a role that was then rescinded before she presented for her first day of work.  This case, while specific, serves as a clear reminder that the general protections against adverse action extend to employees and beyond to all workers, including candidates, even those who have not started work yet.

Case Review

The individual in question applied for and was offered the role of ‘fragrance brand ambassador’ with a start date agreed for 12 days later for the 18/4.

In the time between being made the offer (6/4) and the start date the worker was provided with and signed engagement documents including contracts (13/4), new employee form, super choice and tax file declaration forms and had reviewed and acknowledged the business policies and downloaded and logged into the business rostering app.  The rostering app identified that the workers first shift was to be 20/4.  On 11/4 the worker received a message though the rostering app reminding new staff to attend the training session on 19/4.

On 17/4 the worker enquired via text if the training session would be paid.  When the response came back later that day that the training session was considered ‘professional development and would be unpaid’.

On 18/4 the worker responded that as the training session was not paid she would not be attending.  The worker was contacted and informed that the session only happened once a year, was really valuable and notified that she would be provided with a gift for attending, the worker was then asked again if she would be attending and she responded again that as it was unpaid she would not be attending.  An hour later the worker received an email stating that the offer of the role had been withdrawn.

The worker lodged an adverse action or general protections claim with the Fair Work Commission, in which she alleged that the business breached the general protections and adversely effected her employment by dismissing her for asserting her right to be paid for all work time including the mandatory training session.

The business in response put forward two defences, the first that the worker could not have been dismissed because she had not commenced work, and the second that even if she was to be considered to have commenced work she was not dismissed because her response to being told the role offer had been withdrawn “the way you have fired me. I think that it is not correct” was effectively the worker resigning.

In handing down the Decision Deputy President Roberts noted that while the worker had not commenced her first shift and had therefore not commenced the work of her employment, the employment relationship had actually commenced, and it was the actions and initiative of the business that saw the end of that employment relationship.  The commencement of the onboarding process and the rostering of the worker are clear indicators that she was indeed an employee.

DP Roberts further noted that as the employment contract itself was offered on 6/4, signed on 13/4 and stated employment commenced on 18/4, so the actions of the business on 18/4 to alter the employment of the worker occurred after the contractual start of her employment.

DP Roberts dismissed the businesses objections, finding that the worker was indeed an employee and that the employee was dismissed by the business on 18/4.  The case will now proceed to conference to determine if the dismissal was, as the employee claims, due to a breach of general protections.

Learnings for all businesses

“There are two things here, a dismissal and an adverse action claim.  While many would assume a worker needs to start work in order to be an employee, the reality is that there are often periods between the offer of employment and the commencement of the first shift that are forgotten.  Any action taken by the business in this period needs to treat the worker as if they are a current active employee, of there is a real risk of breaching the procedural fairness requirements.  Of particular note is the fact that while there is a qualifying period for employees to serve before they can lodge an unfair dismissal, 6 or 12 months depending on the size of the business, there is no such qualifying period for adverse action claims”, explains ACAPMAs Elisha Radwanowski

“A worker can lodge an adverse action claim on day one of employment, indeed in certain limited circumstances even candidates who have not been offered a role can lodge an adverse action claim”

“What makes an adverse action claim different to an unfair dismissal claim is twofold; first the worker will argue that their employment was adversely effected because they had or chose to exercise a right, such as the right to be paid for all time spent training, and the second is that unlike unfair dismissal cases, an adverse action case has no upper dollar limit.  In an unfair dismissal the maximum that can be awarded is 26 weeks pay, however in an adverse action there is no upper limit and there is the additional provision of payment for pain and suffering”

“The bottom line is this, all workers and potential workers should be treated fairly and appropriate procedures followed, and once the offer of employment is made the business should treat the candidate as an employee, even if they have not yet had their first day at work”, concluded Elisha.

Here to Help

They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au   its free for members. ACAPMA membership is affordable at only $860 per year for a single site and valuable with sites gaining access to all the ACAPMA Guides as well as HR and IR advice support and representation and a raft of other benefits and discounts.

Elisha Radwanowski BCom(HRM&IR)
Executive Manager Employment and Compliance
ACAPMA

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