FWC looks at dispute involving new hire who worked 3 days before dismissal
The Fair Work Commission (FWC) recently dealt with a case involving an alleged dismissal of a worker by their employer.
In this case, the worker argued that they were dismissed by their employer in contravention of the Fair Work Act 2009 (Cth).
The employer, on the other hand, raised a jurisdictional objection, claiming that the worker was never an employee and, therefore, could not have been dismissed.
Background of the case
The worker, a junior full stack developer, signed an employment contract with the employer, a technology innovation business, on 21 December 2023.
The contract stated that the start date would be in January or February 2024. Through email correspondence, the parties agreed on a commencement date of 29 January 2024.
The worker attended the employer's office and performed work on 29, 30, and 31 January 2024. However, on 31 January 2024, the worker was called into a meeting with the employer and directed to stop work.
The employer later confirmed the end of the employment relationship via email on 15 February 2024.
Failure to provide onboarding information
The employer argued that the worker never commenced employment because they failed to provide the necessary onboarding information for the employer's accounting systems. The employer contended that this prevented the worker from being entered as an employee.
“[The worker] never commenced employment because he did not provide [us] with information to verify his identity and other onboarding information that was required for him to be entered as an employee into [our] accounting systems,” the employer submitted.
However, the Commission dismissed the employer's jurisdictional objection, finding that the worker had indeed commenced employment on 29 January 2024.
The Commission based its decision on several key factors:
“Failure to provide the onboarding information was a substantial practical problem for [the employer] that needed to be addressed. Further, an ongoing refusal to provide this type of information would be highly likely to justify the dismissal of an employee,” the FWC said.
“However, that situation constitutes a refusal from an employee to follow a lawful and reasonable direction from their employer, resulting in disciplinary action. It does not have the legal effect of meaning the employment never commenced,” it added.
The Commission also determined that the worker's dismissal took effect on 15 February 2024, when the employer communicated the decision to the worker via email.
The Commission noted that "a dismissal does not take effect until it is communicated to the employee," citing relevant case law.
Ultimately, the Commission dismissed the employer's jurisdictional objection, finding that the worker had commenced employment on 29 January 2024 and was subsequently dismissed on 15 February 2024. It then directed the parties into a conciliation conference, which was unsuccessful.
