The applicant applied for a casual position as a ‘Fragrance Brand Ambassador’ on 4 April 2023. Two days later, the applicant attended an online interview and was offered the role by email with a start date of 18 April 2023.

Over the following two weeks the applicant signed an employment contract, completed necessary onboarding forms, signed the company policy handbook, downloaded the ‘Deputy’ rostering app, and was advised that her first shift would be on 20 April 2023.

The applicant also received an alert through the Deputy app on 11 April reminding all employees that a mandatory training session would be held on 19 April at the business’ head office.

The applicant asked management whether the training session would be paid. Management responded that the session was ‘professional development’ and would be unpaid. The applicant sent a text message stating she would not be attending.

Management encouraged the applicant to attend, stating that the ‘masterclass’ session was a once per year beneficial opportunity, and that a gift would be provided. The applicant again communicated she would not be attending.

About one hour later the applicant received an email ‘withdrawing’ the brand ambassador role.

Decision

The applicant lodged an application for the FWC to manage the dispute relating to her dismissal. The employer argued that the applicant was not dismissed, terminated her own employment, and the application was not made within the 21-day time frame.

The FWC said that a number of factors pointed towards the existence of an employment relationship, and concluded that even though the worker had not yet started her first shift, a very short employment relationship still existed between the parties.

Further, the FWC determined that the email sent to the worker withdrawing her role constituted a written notice of termination that was clearly intended to have immediate effect.

The jurisdictional objections were dismissed and the matter is to be relisted for a conference.

Learnings for business

This decision demonstrates that an employment relationship can exist between an employee and employer before the employee starting their first shift, that certain actions by the employer may constitute dismissal, and that ‘prospective’ employees may have protections under the Fair Work Act.

Employers should ensure careful consideration of any decision relating to ending employment and avoid any decisions that could be interpreted as a reaction to reasonable enquiries about pay or terms and conditions of employment.

How the Victorian Chamber can help

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on 8662 5222.

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