FWC clarifies when dismissal protections actually apply
The Fair Work Commission (FWC) recently dealt with a jurisdictional challenge in a general protections case where a worker claimed he was dismissed after disclosing his disability to a prospective employer.
The case centred on whether the withdrawal of a conditional job offer before the start date constituted dismissal under the Fair Work Act 2009.
The worker argued that he had effectively started employment after completing all required pre-employment steps, including signing contracts and resigning from his previous job on advice from his new employer's hiring manager.
He claimed that withdrawing his job offer two days after disclosing his disability constituted illegal dismissal and discrimination under general protections provisions.
However, the employer maintained that no employment relationship had been established because the worker had never actually started work, and that the conditional job offer was legitimately withdrawn before his scheduled start date.
The worker received a letter of offer from the National Disability Insurance Agency (NDIA) on 7 January 2025 for an APS4 Access Assessor position, with a scheduled start date of 10 February 2025.
The hiring manager allegedly advised him to resign from his existing employer once he received the formal offer, which he promptly did.
Following receipt of his offer letter, the worker completed several pre-employment requirements. He signed and returned a privacy declaration and confidentiality agreement on 8 January 2025, confirming his "engagement pursuant to the Public Service Act 1999."
On 13 January, the worker contacted the hiring manager and discussed his future role and onboarding steps. According to his evidence, she told him his onboarding was completed and that the only remaining task was to identify his line manager.
The situation changed on 22 January 2025 when the worker disclosed that he lived with a disability and had caring responsibilities for children with disability during a discussion with an agency disability liaison officer about workplace arrangements.
He authorised the disability liaison officer to discuss his disability needs with the hiring manager regarding necessary workplace adjustments before his 10 February start date.
Two days after disclosing his disability, on 24 January 2025, the worker received a letter advising that his offer of employment had been withdrawn.
The NDIA's acting business manager for recruitment and staff development explained the decision, stating that the agency had concluded it was "not satisfied he was able to satisfy the conditions of engagement of an APS4 Access Assessor" due to his alleged persistent phone calls and negative comments towards the agency and its work.
The worker's original letter of offer contained explicit conditional language that proved central to the FWC's analysis. The offer stated:
"Your engagement and continuing employment will be subject to you meeting the conditions of engagement outlined [...] Please carefully ready through these items prior to acceptance of this offer. If it becomes evident, at any time, that you will be unable to satisfy the conditions of engagement, the engagement may not proceed, or, if you have already been engaged, your employment may be terminated."
The NDIA's position in withdrawing the offer was outlined in their letter to the worker: "As advised to you in your letter of offer, your engagement was subject to being able to satisfy the conditions of engagement. The conditions include that you are of good character to undertake the duties of the role of APS4 Access Assessor at the NDIA, which involves representing the NDIA and applying the legislation and rules to access decisions. I have become aware of behaviours that I am not satisfied that you are able to satisfy the conditions of engagement."
The worker denied making negative comments about the agency or engaging in persistent phone calls, claiming the allegations against him were false and that he was denied any opportunity to respond or have them properly investigated.
The FWC was required to determine whether an employment relationship existed before considering the substantive general protections claim. Under section 365 of the Fair Work Act, applications for dismissal disputes require that "a person has been dismissed." The Act defines dismissal in section 386 as occurring when "the person's employment with his or her employer has been terminated on the employer's initiative."
The NDIA's assistant director recruitment provided evidence about the agency's standard recruitment and pre-employment practices.
His evidence explained that the agency's consistent approach is that employment does not start until the designated start date, that prospective employees are made aware of this fact, and that offers of employment can be withdrawn before the start date.
The FWC acknowledged the practical challenges facing prospective employees who resign from current positions before new employment starts.
Despite recognising these difficulties, the evidence showed that the NDIA's process meant employment did not start until the designated date, and that offers could be withdrawn beforehand.
The FWC found that the worker's subjective understanding was insufficient to establish an employment relationship. While he believed he had done everything required and was frustrated by the outcome, the evidence clearly showed he never actually started work with the employer.
The FWC's analysis focused strictly on whether the jurisdictional requirements were met rather than examining the merits of potential discrimination claims.
The timing of the offer withdrawal following the worker's disability disclosure raised questions, but these could not be addressed without first establishing that an employment relationship existed that could be terminated.
The legal principle is clear that "unless and until an employment relationship exists, it cannot be terminated."
The FWC noted that section 386 of the Fair Work Act "requires the Commission to make a positive finding that a person has been 'dismissed' because their 'employment with his or her employer has been terminated on the employer's initiative.'"
The FWC ultimately dismissed the application, stating: "In this case, the evidence is that the [worker] was neither employed nor had commenced employment with the [employer]. His application fails and must be dismissed on this basis."
The case demonstrates that conditional job offers do not create the employment relationships necessary for Fair Work Act dismissal protections, even when workers have taken significant steps in reliance on those offers.
