FWC ruling draws a hard line between a signed contract and an employment relationship
The FWC ruled on 13 March 2026 that a commercial manager who signed a contract but never started work was not dismissed.
When Abergeldie Personnel Pty Ltd withdrew its offer of employment to Ms. Izabela Dembowska on 29 September 2025, it paid her one week in lieu of notice and considered the matter closed. Dembowska had other ideas.
The story begins in July 2025, when Dembowska applied for a commercial manager role at Abergeldie. A letter of offer arrived on 29 August 2025, with a start date of 7 October 2025. She signed it on 3 September 2025. The letter included a warranty clause requiring her to confirm there were no limitations on her ability to perform the role. A day later, on 4 September 2025, Abergeldie sent her a welcome email, asking her to complete induction modules and upload required documents before her first day.
The documents then began stacking up. A deed of confidentiality and restraint had been provided on 3 September 2025. She signed the deed, along with a formal employment agreement, on 16 September 2025. That agreement, the Commission later found, superseded the letter of offer entirely, including all prior warranties.
Also on 16 September 2025, Dembowska resigned from her previous employer, with a final day of 3 October 2025.
By 23 September 2025, Abergeldie's onboarding team had raised concerns with General Manager Ms. Owen that Dembowska had not provided confirmation of her working rights and educational credentials. By 29 September 2025, she had also not uploaded a construction induction card or completed online inductions. Owen called Dembowska that day to say the pre-employment process had ceased and the offer was withdrawn. A letter followed, stating: "I am writing to you to confirm that following a review of business requirements, we are no longer proceeding with the role of Commercial Manager and ending the employment agreement effective today, 29 September 2025. You will receive one week's payment in lieu of notice."
Dembowska never performed any work for the company.
She filed a general protections application, arguing she had been dismissed. Abergeldie contested this, arguing the pre-employment requirements had not been met, no services had been performed, no payment had been received, and the offer had been "withdrawn" not terminated. The company maintained she had never been employed.
In a decision dated 13 March 2026, Deputy President Roberts found there was a binding employment contract between the parties. The Deputy President rejected Abergeldie's argument that the warranty clause in the letter of offer invalidated the agreement on two bases: first, that a failure to fulfil a warranty may sound in a remedy for breach of contract, but does not render the contract itself of no effect; and second, that the subsequent employment agreement had in any event superseded the earlier letter of offer, along with all prior warranties contained in it.
But the contract alone was not enough. The Deputy President found that no employment relationship had ever existed. Dembowska had not performed any work, had not attended the workplace, had not been directed to do so, and did not have secure access to the respondent's information systems. She had only been asked to complete pre-employment tasks, and remained employed by her previous employer at the time. Her contracted start date was 7 October 2025, more than a week away.
The application was dismissed. However, the Deputy President flagged what many HR professionals may not have anticipated: "Whether the applicant has a cause of action for breach of the employment contract between herself and the respondent is a different issue to the question I have been required to determine here."
The ruling confirms that a signed employment contract and an employment relationship are legally distinct. For HR leaders, withdrawing a signed offer before the start date may close the door on general protections claims, but it does not necessarily foreclose the possibility of a breach of contract action in a different forum.
