Case Study – How do we determine if someone is an employee?
When we think of someone being an employee, we automatically think of employment contracts, set hours of work, accrued holidays, superannuation and start dates. If they have started and are present in the workplace then we think of them as an employee. What if someone has been deemed an employee but has never set foot on the premises, let alone worked any shifts?
The case of Mrs Sonia Argentier v City Perfume Retail Pty Ltd [2023] FWC 1819 (24 July 2023) highlights other factors that need to be taken into account before determining that someone is an employee.
Mrs Argentier had been offered a role with City Perfume Retail on 6 April 2023 with a commencement date of 18 April. During the course of the 12 days between her job offer and start date she:
- signed an employment contract.
- completed the necessary employment forms such as superannuation and TFN form
- acknowledged various company policies
- downloaded the Deputy rostering app and
- received notification that her first shift would be 20 April
Through the Deputy rostering system, Mrs Argentier was notified that she was to attend a mandatory training session on 19 April at 7pm. On asking if this session was to be paid, Mrs Argentier was advised this was “professional development” and would be unpaid. Mrs Argentier sent a subsequent message advising that due to the session being unpaid, she would not be attending.
As a result of this, her offer of employment was withdrawn by indication that the role was no longer available and on the 18 April and her rostered shifts on Deputy removed. Mrs Argentier subsequently raised a claim for unfair dismissal.
City Perfume raised the argument that Mrs Argentier was not yet an employee as she had not commenced employment but this was disputed by the Fair Work Commission (FWC) who stated there were other factors that suggested she was an employee such as:
- finalisation of her employment contract
- completion of on-boarding
- addition to the employer's Deputy app
- employment-related messages sent through the app which included shift notifications and information regarding the training session.
It was deemed by the FWC that:
- Mrs Argentier was an employee of City Perfume
- an employment relationship existed (albeit a short one) between City Perfume and Mrs Argentier and
- as a result of the message sent to her on 18 April, this constituted written termination of her employment.
This is something that can be avoided by having recruitment and onboarding processes which may include mandatory training. If an employment relationship is in place, as deemed in this case, mandatory training is work and must therefore be paid.
Please contact the Workplace Relations Team on 07 3872 2264 or email us at workplacerelations@amaq.com.au if you have any questions regarding recruitment, onboarding or training.