Employer failed to follow proper procedures before termination, says worker
The Employment Relations Authority (ERA) recently dealt with a personal grievance claim involving a worker who claimed he was unjustifiably dismissed on the day he was supposed to start working at a company after a migraine prevented him from attending his first day.
The worker argued that he had been properly employed by the company following a trial day, interview process, and job offer, which he had accepted.
He claimed that when illness prevented him from attending work on his scheduled start date, the company dismissed him by text message without following proper procedures or giving him an opportunity to explain his absence.
The case raised important questions about when employment relationships are formed, the authority of company representatives to make job offers, and what constitutes proper dismissal procedures.
Initial contact and trial day arrangements
The worker, an engineer by trade, saw a job advertised for a permanent full-time window installer at a small aluminium window fabrication company.
Rather than applying through the job website, he contacted the company directly and spoke to the sole director and general manager, emailing his CV and references, including one from his current employer.
The director and worker arranged to meet in person at the factory on 3 March 2023 after work hours.
This initial meeting was fairly casual and took place over a beer, with discussions about the worker's current employment and the machinery the director was considering importing.
After this meeting, the parties communicated by text to arrange for the worker to return to the factory on 27 March 2023 for what the worker understood would be a paid trial.
The director would not be present as he was away on business, but his mother-in-law, who worked as an administrative assistant, would meet the worker.
Trial day activities and interview process
The worker arrived at the factory at 7:00 am on 27 March 2023 and met with the director's mother-in-law.
She told the worker that because the director was away, she was in charge and he would be dealing with her.
The worker was paired with one of the company's workers and said he assembled a window, drilled cavities and put a lock on a door.
On 11 April 2023, the mother-in-law texted the worker asking him to come in to talk about the job, with a meeting scheduled for 17 April.
When the worker asked whether it would be an issue that the director was away, the mother-in-law responded via text:
"The reason you need to see me is because I am doing the hiring."
The worker described the 17 April meeting as a job interview where they discussed wages and working arrangements. He stated he did not want to work more than three days per week, but the days would be flexible.
The mother-in-law later described the meeting as a "meet and greet" and said she would not have had authority to make wage commitments, though she acknowledged telling the worker she was "doing the hiring."
Job acceptance and start date confirmation
On 21 April 2023, the worker texted the mother-in-law: "I would like to take the job and join you there. I'll talk to my boss next Wednesday about the time needed to leave."
The mother-in-law responded positively, saying the company looked forward to him joining and to working out the logistics of his departure from his current job.
When the mother-in-law returned to Australia in May, the worker contacted the director directly about his start date.
The director asked when the worker would like to start, and the worker confirmed 6 June as his start date.
On 22 May 2023, the director responded: "See you on the 6th" and sent a calendar invitation for the worker's first day.
The director then sent a calendar invitation titled "starting at [the company]" for 6 June 2023 from 7:00 am, which the mother-in-law clarified was his "first full day of work."
First day absence and dismissal by text
On 6 June 2023, the worker said he woke up with a blinding migraine and could not contact the company to advise that he would not be at work at 7:00 am as expected.
The director added the worker to a work WhatsApp group at 6:09 am, but when the worker had not arrived by 7:15 am, the director texted asking whether he would be coming in.
At 7:46 am, the worker left the WhatsApp group, and the director emailed asking if he was okay. Having received no reply around an hour later, the director sent a series of escalating text messages, including:
"No call, just no show, I think you may have done us a favour," and "I am VERY pleased you will not be joining us, we have definitely dodged a bullet here!"
The worker said he saw these texts just after 10:00 am when he was able to get to his phone and responded immediately, noting the director still owed him for his trial day's work.
The worker raised a personal grievance for unjustified dismissal on 11 August 2023.
ERA findings on employment relationship
The ERA found that the worker was an employee of the company, being a "person intending to work" under the Employment Relations Act.
The Authority determined that the mother-in-law had ostensible authority to offer employment on behalf of the company, noting she had her own company email address, used a company work phone, and explicitly told the worker, "I am the one doing the hiring."
The ERA found that while the mother-in-law may not have had express authority, the director's conduct reinforced the worker's belief that she was authorised to act on the company's behalf.
The director had passed the worker's enquiry to her to handle and did not contradict the worker's impression that he should deal with her.
The Authority concluded that the worker had been offered employment following his interview on 17 April 2023, which he accepted on 21 April 2023.
The ERA found that while not all terms had been settled, the key agreed-upon terms were the services to be provided, starting pay rate, and part-time work arrangements.
Dismissal justification and procedural fairness
The ERA found that the worker was dismissed by the company's text messages on 6 June 2023, particularly the message stating, "I am very pleased you will not be joining us, we have definitely dodged a bullet here."
The Authority determined this was not a mutual parting of ways but a unilateral decision by the company to end the employment relationship.
Applying the justification test, the ERA found the dismissal was unjustified because the company had not acted as a fair and reasonable employer could.
The director did not give the worker an opportunity to explain his absence, instead sending escalating text messages and contacting his former employer without the worker's knowledge.
The ERA awarded the worker $10,000 compensation for humiliation, loss of dignity and injury to feelings, and $2,305.15 for lost wages, though both amounts were reduced by 20 per cent for contributory conduct.
The Authority found the worker had contributed to the situation by not adequately explaining his absence and by leaving the WhatsApp group without explanation. The ERA also ordered payment of $148.40 for the trial day's work.
