Employer argues it's 'standard practice' to assess suitability – but worker argues he was an employee
The Fair Work Commission (FWC) recently dealt with a worker’s dismissal claim who said he was fired from his employment. Meanwhile, the employer insisted that he was “under a trial shift” and, therefore, not their “official” employee.
Adam Hildebrandt started working for Den Café and Bar in Engadine, New South Wales in June 2022. He was a casual food and beverage attendant grade 1, falling under the Restaurant Industry Award 2020, with an hourly wage of $27.46.
Initially, he was employed by Go Beyond Consulting Pty Ltd, but in March 2023, Coffee Smugglers Pty Ltd took over the business of the Den Café and Bar, leading to the end of his employment with Go Beyond Consulting Pty Ltd.
On 27 March 2023, Hildebrandt and others were invited to a “team meeting” by Coffee Smugglers’ management personnel “so [that they can] get to know each other better.”
Later, on 1 April 2023, the following message was sent to them, which said:
“Hey guys,
Can you please send me your availability for the next week? Additionally, we are organising a meet and greet this Monday at 5 pm, which will continue for three hours following dinner with The Den members. Kindly ensure that everyone can attend and let me know if anyone has any conflicts. I'm looking forward to meeting all of you and getting started with this new team.”
Hildebrandt gave the following account of the “team meeting” on 3 April 2023: “At the Staff Meeting, I was invited to continue working at DCB for Coffee Smugglers. I was offered, and I accepted, a shift from 18:00 to 22:30 hours on 5 April 2023. There was no mention of a trial period. The Staff Meeting ended after approximately one hour.”
On 5 April 2023, while working his shift, he was handed an "Employee Details" form, which requested various personal information, including contact details, tax file number, bank details, superannuation information, and availability for shifts. During the shift, he also inquired about his hourly wage, but they didn't answer him.
The conversation with new management to discuss pay rate
The following day, Hildebrandt asked about his pay rate again by sending a text message to "Nishan," the café’s manager. However, his message was “not well received” by the manager.
Nishan said that Coffee Smugglers would only pay him a flat rate of $23 per hour and said the employer “was not prepared to pay him” the previously agreed rate of $27.46 per hour. After that, he was not offered further shifts.
Two days later, Hildebrandt received cash payment for the hours he had worked on 5 April. Later, he decided to file an application before the FWC, alleging that he was terminated from his employment with Coffee Smugglers and that this dismissal violated the general protection provisions of the FW Act.
On the other hand, Coffee Smugglers argued that it never officially employed Hildebrandt, and so he was never dismissed by the company. It also said that he “only ever worked a trial shift.”
Worker’s ‘trial shift’ period
The employer maintained that they did not hire Hildebrandt. According to records, it said:
“The individual in question approached our establishment expressing an interest in the position of a waiter. We invited him to participate in a trial shift, which is a standard practice in our industry to assess the suitability of potential employees for the role.
“After the trial shift, accessing his work, we communicated the rate of pay that the company would offer if the individual were to be hired. Unfortunately, the individual disagreed with the offered rate and expressed his disagreement with our decision. As a result, we agreed not to proceed with the hiring process,” it said.
“Since the individual did not advance to become an official employee, we compensated him for his time and efforts during the trial shift by providing cash payment. This payment was made in good faith as a gesture of gratitude for his participation, despite the fact that he did not meet our requirements for employment,” the employer added.
For his part, Hildebrandt denied “ever being told that it was a trial shift.”
Employer’s communications to the workers
The FWC said that the employer was under no obligation to hire the workers from the old company but noted that the employer still chose to communicate with them to offer work.
“Coffee Smugglers was not obliged to employ any of the previous owner’s employees, and it is possible that Coffee Smugglers might have chosen not to employ Hildebrandt (or any of the others).”
“However, all of the communications from Coffee Smugglers to Hildebrandt (and the employees that worked for the previous owner) were consistent with Coffee Smugglers looking to employ each of the employees: there were several references to meeting the ‘team’ and ‘getting started with this new team,’ as well as posting ‘this week's roster’ and the like,” the Commission said.
While investigating the conversation between the manager and the worker, the FWC said, “there was no evidence of Coffee Smugglers having any concerns about Hildebrandt's performance on his ‘trial shift.’”
“It seems from the later SMS exchange between Nishan and Hildebrandt that Coffee Smugglers was content to offer [him] ongoing work at its nominated rate. It also seems from the SMS exchange that the only reason Hildebrandt was not offered more work was his insistence that he be paid at the award hourly rate,” it noted.
‘Even for one shift, certain obligations arise for employers’
The FWC said that “there is no suggestion that Hildebrandt performed work as a volunteer, nor was there any suggestion that he provided services as an independent contractor.”
“Before the shift and also during the shift, he was provided with an Employee Details form, which is consistent with Hildebrandt becoming an employee of Coffee Smugglers (if he was not already employed),” the Commission said.
The FWC further discussed the nature of a “trial period”, saying that “if a person is employed, even for one shift, then certain obligations arise for employers and, as Coffee Smugglers might now appreciate, certain protections are afforded to employees.”
Ultimately, the FWC ruled that Hildebrandt was an employee of Coffee Smugglers and that he was “an employee who was dismissed” from his casual employment.
Consequently, it scheduled a conference to deal with the worker’s claim against the employer.
