Fair Work Commission Upholds Rights of ‘Trial’ Employees: A Pivotal Decision for Employers

Fair Work Commission Upholds Rights of ‘Trial’ Employees: A Pivotal Decision for Employers

Crafting a Robust HR Strategy: A Step-by-Step Guide
Crafting a Robust HR Strategy: A Step-by-Step Guide

The realm of employment law witnessed a landmark verdict recently, as the Fair Work Commission decreed that a so-called ‘work trial’ candidate was, in fact, entitled to make a general protections claim under the Fair Work Act.

The Case at Hand

Adam Hildebrandt, previously associated with Den Café and Bar in Sydney as a café assistant, found his employment in limbo after a change in management. When Coffee Smugglers Pty Ltd took over in March 2023, Hildebrandt’s status became uncertain. His inquiry about his hourly wage during a shift in April met with ambiguity, with the employer quoting a rate lower than the recognised award rate. Subsequent to this exchange, Hildebrandt wasn’t offered any more shifts.

Hildebrandt later approached the Fair Work Commission, asserting that he was unlawfully terminated for merely questioning his remuneration. The employer’s defence? They claimed Hildebrandt was on a ‘trial’ and was never formally employed, negating any claims of termination.

The Verdict

However, Deputy President Easton discerned otherwise. Here are some pivotal observations from the ruling:

  1. The employer labelled Hildebrandt’s stint as a mere ‘trial shift.’ Yet, Hildebrandt refuted any communication that stated the shift was for trial purposes.
  2. Past communications hinted at an existing employer-employee rapport. Phrases such as “meeting the team” and “this week’s roster” were indicators.
  3. The employer couldn’t pinpoint any performance concerns during Hildebrandt’s ‘trial.’
  4. The ‘Employee Details Form’ given to Hildebrandt during his shift further cements the fact that he was considered an employee.
  5. The law does not discriminate based on the length of the shift. Even a single shift intended for assessing a candidate’s fitment invokes employment obligations. Coffee Smugglers was not an exception.

Key Takeaways for Employers

This ruling emphasises the crucial distinction employers must maintain between paid work and trial evaluations. Moreover, with a business transition, both the seller and buyer inherit specific obligations concerning the existing employees. Ignorance or oversight can lead to legal complications, emphasising the need for clarity and adherence to employment laws.

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Updated on 1 July 2024

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