In the latest of a series of cases that has clarified when an worker is an employee and entitled to employee rights, specifically around candidates and retracted offers, a worker who was engaged for one work trial shift has been granted permission to pursue a general protections claim.
The worker, who was working his first shift for the new operators, a ‘trial’ shift, raised a question about the rate of pay that he would be offered. When the rate was communicated he responded that he believed that the offered rate was below the Award rate.
The business asserted that the offered rate was appropriate and was all that would be offered.
“Unfortunately, the individual disagreed with the offered rate and expressed his disagreement with our decision. As a result, we agreed not to proceed with the hiring process” the company outlined to the Commission.
Learnings for Businesses
“When a ‘worker’ is able to access the protections of an employee is something that is constantly being refined by case law such as this. But the message to employers is clear, all workers need to be provided with the basics of fairness and communication is critical to any determination about employee status”, explains ACAPMAs Elisha Radwanowski.
“Businesses often get caught out when trying to do all the steps at once. There is efficiency, and then there is confusion. If the business is going to have a worker do a Work Trial to determine if they are going to be employed, then the business cannot send the employee a letter of offer and all of the commencement paperwork before that trial, otherwise the employee is rightly left with the impression that they have already commenced employment”, continued Elisha.
“Clear communication of the nature of the work trial, whether it is paid or unpaid, the number of hours it will be in length (remembering in the fuel retail industry it should not be longer than four hours in total) and what happens at the end of the work trial is vital”.
“Its this last one that is not communicated well. Candidates should be clearly advised, before the work trial starts, that at the end of the work trial an assessment will be made and only if the candidates demonstrated capacity and skills matches with the needs of the business will an offer of employment be made”, Mrs Radwanowski adds.
“Many businesses are trying to be efficient by jumping straight to sending the onboarding documents at the same time as they are sending the details for the work trial and this, according to a number of recent cases, triggers the employment relationship to start. And once the relationship has started the business is open to a general protections or adverse action claim”.
“Unlike an unfair dismissal, and adverse action claim is uncapped in terms of penalties, and has no qualifying period or exemption for the size of the business”, explains Elisha.
“If the business ‘adversely effects’ the workers employment because of one of the areas of protection, which includes asserting workplace rights like seeking the proper wage rates, then the business can face a claim from workers that have, as in this case, only done one trial shift”.
“The take-home is simple, until you are ready to start the employment relationship don’t send employment documents or behave as if the employment relationship has started, you have to keep the candidate phase separate from the employee phase, that separation must be deliberate and clear, and all workers, candidate or employee, must be treated with fairness and their rights respected”, concluded Elisha.
Here to Help
This article is general in nature and covers things to consider, implement and watch out for in your business. It is provided as general advice and you should seek further advice on your situation. ACAPMA Employment Professionals are available to assist ACAPMA members via employment@acapma.com.au. ACAPMA membership is affordable at only $860inc GST per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Visit: https://acapma.com.au/membership/ to learn more or to apply for ACAPMA membership.
Elisha Radwanowski BCom(HRM & IR)
Executive Manager for Employment and Compliance
ACAPMA
