Worker fired for refusing to attend 'unpaid' training before official start date

The Fair Work Commission (FWC) recently dealt with a worker’s unfair dismissal claim after she was fired for failing to attend an “unpaid” training before her official start date. Meanwhile, the employer said that since she hadn’t taken any shifts yet, she could not be “dismissed” from employment.

The worker said that she applied for a part-time position as a fragrance brand ambassador. She said shortly after that, she attended an online interview with an employer’s representative.

Consequently, the worker received documents from the company’s senior financial accountant and HR Manager that contained “onboarding documents and interview information.”

Mandatory ‘unpaid’ training

Over the course of the following two weeks, the applicant completed various tasks related to onboarding. This included signing an employment contract, filling out necessary forms, and acknowledging receipt of the company policy handbook. Additionally, they downloaded and set up the rostering app.

According to the worker’s testimony, she informed the employer that she was available to start working from 18 April 2023. The employer made some changes to her proposed shifts but scheduled her to work on 20 April.

The employer's representative, “Mr. Gergi,” said that the worker's "technical start date" was 20 April but acknowledged that she could have been rostered to work on any day starting from 18 April. However, events unfolded differently as the worker did not begin her first shift.

The worker provided documentary evidence that on 17 April, she messaged Gergi asking if the scheduled training session on 19 April would be paid.

Gergi responded the same day, stating that the session was unpaid “professional development.” On 18 April, the worker sent another message to the employer, stating that she would not attend the session since it was unpaid.

The employer, through Gergi, replied and said the "masterclass session was an opportunity that arises once a year," "that a gift would be provided to the [worker] for attendance," and "that the session would be ‘truly beneficial for (the worker's) own knowledge’."

He then asked the worker to confirm her attendance at the session. The worker then advised him again that she would not be attending the unpaid training session.

On April 11th, through the Deputy app notification system, all employees were informed about a mandatory training session taking place on April 19th at the company's headquarters.

After an hour, the worker received an email that the employer was “withdrawing” the brand ambassador role.

The employer decides to ‘withdraw’ worker’s role

The employer’s email contained the following:

“With much regret, I wish to inform you that our business and brand partners have decided to withdraw the brand ambassador role at this stage from the market. With that being said, the brand ambassador role is no longer available. Unfortunately, they have also cancelled our masterclass last minute apologies for the inconvenience caused. However, should the role come back up, I will keep you in mind if that is okay with you.”

The worker replied to this message and said:

“Many thanks for your email and letting me know. The way you have fired me, I think that it is not correct. I didn’t ask much, I just wanted things done correctly and by the law, a Mandatory Training or Masterclass should have been paid,” the worker said.

Was there an employment relationship?

The employer argued that the worker’s employment had not started yet because she had not begun any shift, and thus, it said “she could not have been dismissed.”

In its decision, the FWC explained that “an employment contract and an employment relationship can come into existence at different times. Often, but not always, the contract precedes the employment relationship or the commencement of work.”

It noted that a written contract was executed by both parties by 13 April 2023. The terms of the contract provide that the agreement was “made” on 6 April and that the contract “commenced” on 18 April. The terms also described that they had an "employment relationship."

It also emphasised that she “had not commenced her first shift” and “consequently, had not received any wages.” However, the Commission decided to examine the nature of their relationship.

“The [worker] had completed the application process and ‘onboarding’ and had been added to the [employer’s] ‘Deputy’ app. Through this app, a number of employment-related communications had passed to her from the [employer] prior to the events of 18 April,” the FWC said.

“This included information and instructions about dealing with customers and the advice about the ‘mandatory’ training session that was to take place on 19 April. It was also through this app that employees, including the [worker], were advised of shift arrangements.”

“In other words, [she] was by this stage part of the [employer’s] workforce,” the decision said.

The Commission also found that “the contract terms included a term that restricts the employee’s capacity to work for another without the employer’s consent. That restriction came into existence at the time when the contract was first entered into,” it said.

Additionally, the Commission considered the employer’s requirement that the worker should attend a “mandatory” training session.

“The session was described to the [worker] by the [employer] as a ‘mandatory’ training session. The [employer] asked [her] to confirm her attendance twice and clearly had an expectation that the [worker], like other staff members, would attend even though the session was not an ordinary allocated shift and was unpaid,” it said.

“These matters conclude that even though [the worker] had not yet commenced her first shift with the [employer], an employment relationship, albeit one of relatively short duration, existed between them,” the Commission said. Thus, it relisted the matter for a conference.