The Issues
The case involves Ms. Sonia Argentier (the Applicant) filing an application under section 365 of the Fair Work Act 2009 (Cth) (the FW Act) with the Fair Work Commission (the Commission) to address a dispute regarding her alleged dismissal by City Perfume Retail Pty Ltd (the Respondent). The Applicant claims that her dismissal was in violation of Part 3-1 General Protections of the FW Act. The Respondent argued that the Applicant was not dismissed and instead terminated her own employment, and they also raised an objection stating that the application was not made within the 21-day time limit provided by the FW Act.
To deal with the dispute, the Commission must determine whether the Applicant was actually dismissed within the meaning of section 365 of the FW Act before exercising the powers to address the dispute under section 368. The application must also be submitted within 21 days of the dismissal or within a further period allowed by the Commission under section 366(2).
Facts
Based on the evidence provided by the Applicant, it was shown that she applied for a position as a Fragrance Brand Ambassador with the Respondent. After an online interview, she received onboarding information and invitations through the Deputy app, indicating her successful application. The Applicant signed the employment contract on April 12, 2023, and it was also signed by a director of the Respondent on April 13. The employment contract stated the start date as April 18, 2023.
However, before her first shift on April 20, the Applicant inquired about the unpaid training session on April 19. Despite the Respondent’s efforts to convince her to attend, she decided not to attend the unpaid session. Later that day, the Respondent sent her a message informing her that the Brand Ambassador role had been withdrawn from the market and apologised for the inconvenience.
The Applicant responded to the message expressing her disagreement with the way she was dismissed. The Respondent removed her rostered shifts for the upcoming days, and the Applicant filed the application under s.365 of the FW Act on May 9, 2023.
In response to the Applicant’s claim of dismissal, the Respondent argued that the Applicant’s employment had not started officially as onboarding was not completed, and she had not undertaken any duties or received access to the company’s systems.
Consideration
The Commission’s decision in this case was primarily based on the interpretation of Section 386 of the FW Act, which provides the meaning of ‘dismissed’ for the purposes of Section 365. According to Section 386(1)(a), a person is considered to be dismissed if their employment with the employer has been terminated on the employer’s initiative.
The Commission referred to a precedent case, Khayam v. Navitas English Pty Ltd [2017] FWCFB 5162, which clarified that the analysis of whether there has been a termination of employment at the employer’s initiative should be conducted based on the termination of the employment relationship, not merely the termination of the specific contract of employment. Thus, the critical consideration is the status of the employment relationship itself.
In this case, the Applicant had entered into a written employment contract with the Respondent on April 6, 2023. The contract specified that it would commence on April 18, 2023. The terms of the contract explicitly stated that the agreement would establish an ’employment relationship’ between the Applicant and the Respondent, and it also included a clause restricting the Applicant from working for another employer without the Respondent’s consent. The Commission emphasised that these contractual terms were significant as they not only outlined conditions of employment but also acknowledged the establishment of an employment relationship itself.
The Commission acknowledged that the commencement of the employment relationship might differ from the signing of the contract, and it typically occurs when the employee begins to perform work for the employer. However, in this case, the Applicant had already undergone onboarding and was added to the Respondent’s workforce through the Deputy app. She had also received communications related to employment matters and shift allocations before the events of April 18. All these factors pointed to the existence of an employment relationship between the Applicant and the Respondent by April 18, 2023.
The Respondent argued that the Applicant had not yet commenced her first shift, and therefore, there was no employment relationship. However, the Commission highlighted that the absence of work and wages alone might not negate the existence of an employment relationship. Other factors, such as the contractual terms and being part of the workforce, should also be considered.
As for the termination of employment, the Respondent’s message sent at 12.52pm on April 18 was deemed to constitute a written notice of termination. The message was clear in stating that the role the Applicant applied for had been withdrawn and was no longer available. The termination was intended to have immediate effect, and the Applicant’s shifts were removed from the app shortly afterward. The Commission rejected the Respondent’s argument that there was no written evidence of termination and that the Applicant’s message in reply constituted a resignation. The Commission ruled that the Respondent had terminated the Applicant’s employment.
Regarding the application’s timeliness, Section 366 of the FW Act requires an application under Section 365 to be made within 21 days after the dismissal took effect. The dismissal occurred on April 18, 2023. The Applicant filed the originating application on May 9, 2023, within the 21-day period. The application was, therefore, deemed to be made within time.
In conclusion, the Commission found that an employment relationship existed between the Applicant and the Respondent by April 18, 2023. The Respondent had terminated the employment on that date, and the application was timely filed. The Respondent’s objections were dismissed, and the matter would be relisted for a conference pursuant to Section 368 of the FW Act.
