In this week’s blog we take a look at a recent employment law case in which Commissioner Crawford of the Fair Work Commission was required to determine whether an employee had commenced employment with an employer and would therefore be entitled to pursue their General Protections Application against the Employer. 

The main question that Commissioner Crawford was required to answer was whether the employee’s employment had commenced despite the employee not providing the information required for onboarding them onto the employer’s internal systems.

Mr Gabriel Peddie v CJ Global Tech Pty Ltd – [2024] FWC 897 

On 1 March 2024, the Applicant in these proceedings, Mr Gabriel Peddie (Mr Peddie) filed a General Protections application against CJ Global Tech Pty Ltd (CJ Global Tech) alleging that he had been dismissed in contravention of section 365 of the Fair Work Act 2009 (Cth) (Fair Work Act). 

On 9 March 2024 CJ Global Tech objected to Mr Peddie’s application in their Form F8A response form on the basis that Mr Peddie was not an employee of the company and hence could not have been dismissed by CJ Global Tech  

The matter was listed for a hearing before Commissioner Crawford on 3 April 2024 with Mr Peddie representing himself with the assistance of his father and CJ Global Tech being represented by Mr Justin Derry, CEO and Director of CJ Global Tech, with the assistance of Ms Cindy Derry, CFO and HR Manager. 

Background

CJ Global Tech operates a technology innovation business and engaged Mr Peddie to commence employment as a ‘Junior Full Stack Developer’ pursuant to a signed letter of engagement dated 20 December 2023 (the Contract). The Contract relevantly provided at clause 1.1 that “Your start date will be TBA in January or February 2024” which was later agreed via email between the parties to be 29 January 2024. 

Mr Peddie did in fact commence employment on the 29th of January and attended the CJ Global Tech offices and performed work at the direction of Mr Derry over the next couple of days. Just three days later, on 31 January 2024 Mr Peddie was called into Mr Derry’s office and directed to cease work CJ Global Tech. Two weeks later on 15 February 2024 Mr Peddie’s employment was terminated via email which contained the following excerpt: 

The simple answer is that the offer for employment we made previously for you prior to xmas is not going to work…

So what this means now is that going forward we don’t have a position for you to fill…

I do wish you all the best in your endeavours, I think to be honest you would be well suited in a very large development group like a bank or somewhere with a team of structured developers and a lighter and more defined workload.

What was the Fair Work Commission required to determine?

As this was a jurisdictional objection to a General Protections application Commissioner Crawford was required to deal with the employer’s objection before the matter could proceed to a conciliation or eventually be heard in the Federal Court. 

As such there were two legal questions Commissioner Crawford was required to answer, including: 

  1. Whether Mr Peddie was an employee of CJ Global Tech; and  
  2. If so, whether Mr Peddie had been dismissed within the meaning of section 386 of the Fair Work Act.

Relevantly section 386(1) of the FW Act provides that a person has been dismissed if:

  1.  the person’s employment with his or her employer has been terminated on the employer’s initiative; or
  2.  the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

CJ Global Tech’s Argument

It was CJ Global Tech’s primary argument that Mr Peddie had never actually commenced  employment  as  he  did  not  provide  CJ  Global  Tech  with information to verify his identity and other onboarding information that was required for him to be entered as an employee into its accounting systems. 

Conclusion 

This argument was rejected by Commissioner Crawford who ultimately found that Mr Peddie had commenced employment on 29 January 2024 pursuant to the terms of the Contract. Commissioner Crawford highlighted that the parties had reached an agreement that Mr Peddie would commence employment on 29 January 2024, and he did in fact attend CJ Global Tech’s offices and began to perform work for CJ Global Tech. Commissioner Crawford also highlighted that the absence of onboarding paperwork cannot have the legal effect of meaning the employment did not commence in accordance with the clear terms of the Contract, especially when the employee had commenced attending the workplace to perform duties, including onboarding training. 

In answer to the second question, Commissioner Crawford found that the email sent to Mr Peddie on 15 February 2024 confirmed that his employment with CJ Global Tech had ended as there was no work for him to perform in his current role and that no alternative role had been identified for Mr Peddie. . 

As Mr Peddie was found to have been an employee and that he had ultimately been dismissed from his employment, Commissioner Crawford dismissed the jurisdictional objection and allowed Mr Peddie to pursue his claim. 

Whilst Commissioner Crawford acknowledged that Mr Peddie’s failure to provide the required onboarding information was a substantial practical problem for CJ Global Tech which if continued, could likely justify the dismissal of Mr Peddie. However Commissioner Crawford noted that that situation would constitute an employee refusing to comply with a lawful and reasonable direction from their employer which would result in disciplinary action; it would not have the legal effect of meaning the employment never commenced. 

Lesson for Employers 

There are many reasons why it is important to ascertain an employee’s correct start date in employment law, including in determining an employee’s right to access certain entitlements (such as long service leave, parental leave or casual conversion) or in determining whether the employee has completed the minimum employment period and is protected from unfair dismissal. 

This case serves as an important reminder that it will be the terms of the contract that are decisive of when an employee’s employment has commenced and that this will be regardless of whether they have complied with a direction from the employer to provide specific information or documents. It is also important to note that an employee will have commenced employment regardless of whether they have been fully onboarded by a company if the terms of the contract are clear on the employee’s commencement date and there are no prerequisites for the employment to commence.  

Need further help?

If you require assistance with employment contracts, defending a general protections application are or if you would like further information about anything in this article please contact EI Legal at: info@eilegal.com.au

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