Is it dismissal? Offer rescinded while job candidate 'weighing up options'
The Fair Work Commission (FWC) recently dealt with a general protections dispute involving dismissal. The case involved a worker who claimed to have been dismissed by the employer revoking its offer of employment.
The employer raised a jurisdictional objection, arguing that the worker was not terminated as he was never an employee of the company.
The case highlighted the importance of clear communication and understanding between employers and prospective employees during the hiring process. It also raised questions about the boundaries of workplace rights and the consequences of exercising them.
Background and context
The dispute arose in the context of Australia's fair work legislation, which aims to protect workers' rights and prevent discrimination in the workplace.
The Fair Work Act 2009 provides employees with the right to lodge complaints or inquiries with their employers without fear of adverse action, such as dismissal or discrimination.
In 2022, the Australian government passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act, which introduced new provisions to enhance wage transparency and reduce the gender pay gap.
This amendment allows employees to discuss their pay with colleagues and request salary information from their employers without fear of reprisal.
The worker’s interview and job offer
According to records, the worker, who was reportedly seeking an inclusive and respectful workplace, attended an in-person interview with the employer's administration manager for an Accounts Receivable position.
During the interview, the worker shared his past experiences of discrimination and bullying based on his ethnicity, religion, and the pronunciation of his name.
The day after the interview, the worker received a call from the administration manager offering him the position, which he accepted. The administration manager followed up with an email detailing the onboarding process and the worker's start date.
The request for salary information
Citing the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, the worker emailed the employer requesting information about the incumbent's salary.
He believed this discussion was important for evaluating the job offer and ensuring fair compensation. The worker stated in his email:
"In order to make a comprehensive evaluation of this opportunity, I was hoping you could provide some additional information regarding the compensation for this position. Specifically, if the current incumbent is comfortable with disclosing, I would like to understand if the salary offered to me aligns with what the current incumbent is earning."
The employer expressed confusion about the worker's request and stated that they would not disclose the incumbent's salary information.
Following an email exchange and a brief phone call, the employer sent an email rescinding the job offer.
Allegations of discrimination
The worker alleged that the employer took adverse action by terminating his employment, violating his workplace right to lodge a complaint or inquiry without fear of reprisal.
He cited discrimination as the primary cause of his dismissal, suspecting that the wage discrepancy between him and the incumbent was due to his skin colour, race, and religion. The worker stated:
"He suspected that this wage discrimination is due to his skin colour, race and religion. He submitted that when the [employer] realised it could not take unfair advantage of him, it proceeded to terminate his employment."
The worker further asserted that the employer's lack of evidence to show that it is an inclusive organisation should be seen as a clear indication of discrimination between its "white and non-white" employees.
The employer's evidence and the salary discussion
The administration manager provided her account of the interview and subsequent interactions with the worker. She agreed that the worker expressed his desire for an inclusive and non-discriminatory workplace during the interview.
However, she did not recall any discussions about bullying by colleagues in the worker's previous roles. Regarding the salary discussion, the administration manager stated:
"[The worker] advised that his salary expectation would be $70,000 per annum for a 38-hour week. [The administration manager] explained the hours would be 8:30am to 5:00pm, with a half hour lunch break. [The worker] stated the hours are greater than a 38-hour week, to which [the administration manager] agreed.”
“[The worker] said he would then need to increase his salary expectation given the increased hours, and she asked him what he felt was a fair and reasonable expectation. He said he would seek $75,000 per annum based upon the start and finish time. [The administration manager] agreed and advised that this was what the position was offering."
The FWC's findings and decision
While it was not disputed that the worker orally accepted the employer's offer of employment during the telephone conversation on 13 October 2023, the FWC took into consideration several significant facts.
Firstly, the onboarding email sent to the worker had a number of matters that he would need to attend to as conditions precedent to the commencement of employment. These requirements were stated as "must" be completed and "required" to complete. None of the requirements were completed prior to the offer being rescinded by the employer.
Secondly, the worker's email on 14 October 2023 demonstrated that he was "sitting on the fence, evaluating the written offer that had been put to him, awaiting further information from the Respondent before he would commit in writing."
The worker requested the extent and reason for the difference if the incumbent was earning more than $75,000 per annum.
The FWC was satisfied that the proposed employment relationship did not materialise into an actual employment relationship. The offer was rescinded by the employer while the worker was “weighing up his options. “
“[He] never performed any services for the [employer] and the [latter] did not make any payment to him. Any potential relationship between the parties was dissolved by 16 October 2023, well before the proposed commencement date of the employment relationship on 23 October 2023,” the FWC said.
“There cannot have been a dismissal if the employment relationship was not in existence,” it added. Accordingly, the employer's jurisdictional objection was upheld, and the worker’s application was dismissed.
