The Fair Work Commission has ruled that a worker who performed a single paid “trial shift” can bring a general protections case against their employer, Coffee Smugglers.
Deputy President Michael Easton, found 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”.
Coffee Smugglers Pty Ltd (trading as The Den Cafe And Bar) argued that it did not employ the casual food and beverage attendant, but only paid him for a trial shift, and decided not to hire him.
The attendant began working for the cafe in June last year. The company paid him Grade 1 under the Restaurant Industry Award rate of $27.46 an hour.
When Coffee Smugglers purchased the business in March this year, the attendant’s employment with the first company ended.
He attended a “team meeting”, during which Coffee Smugglers invited him to continue working at the cafe.
Coffee Smugglers scheduled him for a shift, and during that time a manager gave him an “employee details” form that required his shift availability, tax file number, and contact, bank, and superannuation details.
After his shift, the attendant texted the manager to ask about his rate of pay, to which the manager responded “that Coffee Smugglers would pay ’23$/hour flat’ and was not prepared to pay $27.46 per hour”.
Deputy President Easton observed that the attendant’s inquiry “was not well received” and Coffee Smugglers did not offer him any further shifts.
The company told the Commission: “After the trial shift, a[ss]essing 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”, it said.
“As a result, we agreed not to proceed with the hiring process.”
The attendant claimed that no one from Coffee Smugglers told him about a trial shift.
The deputy president observed that all Coffee Smugglers communications to the employees that worked for the previous owner indicated that it intended to employ each of them.
He confirmed that it “seems from the SMS exchange that the only reason [the attendant] was not offered more work was his insistence that he be paid at the award hourly rate”.
Deputy President Easton said Coffee Smugglers’ actions in providing the attendant an employee details form “is consistent with [him] becoming an employee of Coffee Smugglers (if he was not already employed)”.
He found that Coffee Smugglers engaged and dismissed the attendant and will schedule a conference to deal with the worker’s s365 dispute.
