NSW ruling confirms victimisation laws kick in before a contract is signed
Pulling a job offer over a candidate's political views just became legally risky for NSW employers, a tribunal has confirmed.
On 27 February 2026, Commissioner O'Sullivan of the Industrial Relations Commission of New South Wales dismissed a bid by the Department of Planning, Housing and Infrastructure to have a victimisation claim thrown out, ruling the Commission has jurisdiction to hear it.
The case centres on Darren Cook, who was offered a non-executive role with the department before the offer was withdrawn on 16 August 2024. Cook alleged the withdrawal was because of his engagement in political activity, a protected ground under the Industrial Relations Act 1996 (NSW). He filed a claim seeking orders for his employment and payment of lost remuneration.
The department's position was direct: the failure to hire someone into a non-executive public service role is not an "industrial matter," meaning the Commission had no power to hear the case at all.
Commissioner O'Sullivan disagreed.
The ruling turned on a critical point. While certain aspects of public sector hiring fall outside the Commission's reach, that carve-out does not extend to victimisation claims. As the Commissioner found: "There is nothing on the face of the s 58 of the GSE Act, nor the balance of the Act which leads to an interpretation that Parliament had intended to implicitly remove the right for a prospective employee to bring a claim under s 210 of the IR Act."
The Commissioner was equally firm about what the alternative would mean. He added: "Furthermore, it would lead to the absurd outcome of the State refusing employment of potential non-executive employees for reasons rendered unlawful by s 210 of the IR Act."
The ruling also departs from a 2003 decision, Crewdson v Department of Community Services and Department of Ageing, Disability and Homecare, which had previously been cited as authority for the view that the Commission lacked jurisdiction over pre-employment victimisation claims. Commissioner O'Sullivan found that decision was reached without the central issue being properly argued and declined to follow it.
The practical message for HR practitioners is straightforward. Legal obligations around victimisation do not begin when a contract is signed. They apply from the moment a hiring decision is made, and that includes the decision to withdraw an offer. It is a compliance gap that many HR teams are not actively managing.
Political activity also rarely appears on standard compliance checklists or in recruiter training. Yet it sits alongside age, disability, and other commonly recognised protected grounds under the Act. HR executives, particularly those in or advising government agencies, should check whether it features in their hiring frameworks and recruitment policies.
Documentation matters too. When an offer is withdrawn, there needs to be a clear, lawful reason on record. As this case shows, the absence of that paper trail can open the door to a claim.
The proceeding now continues, with Cook's application for employment and lost remuneration still to be resolved.
