In brief

The Fair Work Commission has dismissed a general protections application involving dismissal after finding that a worker who undertook an unpaid trial shift at a bakery had not been dismissed.

The decision is a useful reminder that unpaid trials should be carefully limited and documented. It also highlights that, while general protections claims do not require a minimum period of employment, an applicant must still establish that they were dismissed before bringing a dismissal-based claim.

Background

The worker agreed to attend a trial shift at a bakery. During the trial, the worker suffered a minor finger injury and went home. The bakery did not offer the worker any further trial shift or employment.

The worker then filed a general protections application involving dismissal, alleging that he had been dismissed because of the workplace injury.

The bakery denied that the worker had been dismissed. It said the trial was arranged so the worker could shadow staff and demonstrate his suitability for employment. The bakery also said that it was unaware of the injury, that the trial had not been completed, and that the worker had not been found suitable for employment.

Deputy President Alan Colman dismissed the application.

Legal position

The application was brought under section 365 of the Fair Work Act 2009 (Cth), which allows a person to apply to the Fair Work Commission to resolve a dispute if the person has been dismissed and alleges that the dismissal contravenes the general protections provisions.

The Commission found that there was no employment relationship between the worker and the bakery. As a result, there could be no dismissal for the purposes of section 365.

The Commission also found, in the alternative, that even if an employment relationship had existed, the worker still had not been dismissed. This was because any employment was for the limited purpose of the trial shift and ended when that trial arrangement ended.

Lessons for employers

Work should not be unpaid unless it falls within a recognised category, such as a lawful unpaid trial, vocational placement, or genuine volunteer arrangement.

In general terms, an unpaid trial should be limited to a short, supervised assessment of the person’s ability to perform the skills required for the vacant position. It should only last for as long as is reasonably necessary to assess those skills.

An unpaid trial should not be used as a substitute for paid work. If the person is performing ordinary duties, covering a shift, serving customers, producing goods, or otherwise doing work beyond a supervised skills assessment, the arrangement may be treated as employment and the person may be entitled to be paid.

If an employer wants to assess the person further, the safer course is to employ them as a paid casual employee or on a probationary basis.

Employers should also keep clear written records of the purpose, duration and scope of any unpaid trial. This includes confirming that the trial is not an offer of employment, identifying the skills being assessed, and ensuring that the person is supervised throughout the process.

Importantly, this decision does not mean unpaid trials are risk-free. If a trial goes beyond a brief supervised skills assessment, an employment relationship may be found to exist. In that case, the person may be entitled to minimum wages and other employment entitlements.

Employers should also remember that general protections claims do not have the same minimum employment period as unfair dismissal claims. However, where the application involves dismissal, the applicant must still establish that a dismissal occurred.

If you would like to discuss unpaid trials, recruitment processes, or other workplace issues, please contact Andrew Bland or call 02 9412 3077.