Dispute emerges over whether verbal offer from receptionist created binding employment contract
The Fair Work Commission (FWC) recently dealt with a general protections application involving dismissal where the employer raised a jurisdictional objection, arguing that no employment relationship had ever been established.
The employer contended that the worker had participated in a recruitment process but was never actually offered or commenced employment with the company.
The worker argued that she had been offered a position during an interview with a senior receptionist and had commenced on-the-job training under the belief she would receive a written contract following this training period.
She also alleged that during the recruitment process, discriminatory comments were made towards her based on her religion and other protected attributes.
The case centred on whether an employment relationship had been established during what both parties agreed was a recruitment process.
The worker had participated in a recruitment process with a medical specialist practice, which followed a standard procedure for interviewing candidates. The employer outlined that their recruitment process included several stages: a typing test, an interview with a senior receptionist, shadowing of staff to observe scans, shadowing of staff to observe procedures, and a final interview with the practice owner who had sole authority to make offers of employment.
The employer provided examples of test results, interview guides, and other recruitment requirements to demonstrate that the worker's recruitment process was standard and consistent with their business requirements.
The practice owner confirmed that she had sole authority to make offers of employment and that at no stage was such an offer made to the worker. She provided an example of a letter of offer that had previously been sent to another employee and outlined that no such offer was made to the worker.
The employer's position was that there was never any employment relationship established between the parties, as the worker was never offered employment.
The practice owner confirmed that there was never any discussion or agreement in relation to salary or remuneration, hours of work, or days of work. The employer maintained that the worker had attended an interview process but was ultimately not the successful candidate.
The worker provided a lengthy witness statement in support of her application, claiming she had an interview with the senior receptionist and during this interview was offered the position.
The worker submitted that she then commenced on-the-job training with the employer and was under the belief she would receive a written contract of employment following this training period.
However, the worker did not attend the hearing on 7 May 2025, which had been delayed on multiple occasions due to various requests from both parties. As a result, the worker's witness evidence was not subject to cross-examination from the employer or the Commission. This absence proved significant in how the Commission would weigh the competing evidence.
The worker also submitted that during the interview process, the practice owner made discriminatory comments towards her based on her religion and other general protections.
These allegations formed part of her broader claim that adverse action had been taken against her in contravention of the general protections provisions of the Fair Work Act.
The employer's witnesses, including the senior receptionist, denied ever offering the worker a position and confirmed that only the practice owner had the authority to make an offer of employment. Multiple employees provided evidence supporting the employer's version of events.
The employer presented evidence from several staff members who had been involved in the recruitment process. The senior receptionist who allegedly offered the worker a position denied ever making such an offer and confirmed that only the practice owner had the authority to make employment offers. This directly contradicted the worker's account of being offered the position during her interview.
Two other receptionists and ultrasound assistants also provided evidence in relation to the recruitment process that the worker participated in, confirming that the worker was never employed by the practice. These witnesses supported the employer's position that the worker had participated in a standard recruitment process but had not been successful.
The employer's witnesses also addressed the discrimination allegations, with staff members providing evidence that the practice owner was respectful to all patients and staff regardless of their race, gender, religious belief or other protected attributes. The practice owner denied ever making any remarks that were discriminatory in nature.
The Commission noted that where the worker's evidence conflicted with the employer's witnesses, it preferred the tested witness evidence of the employer's witnesses. This preference was based on the fact that the worker's evidence had not been subject to cross-examination due to her absence from the hearing.
The FWC found that the competing accounts between the worker and the employer's witnesses created a credibility issue that needed to be resolved. The Commission stated: "I note where the [worker's] evidence conflicts with the [employer's] witnesses, I preferred the tested witness evidence of the [employer's] witnesses."
The Commission was critical of the worker's failure to attend the hearing, noting that "the [worker's] witness evidence was not subject to cross examination and could not be tested." This absence meant that the worker's version of events could not be properly examined or challenged, giving greater weight to the employer's evidence.
The FWC made clear findings about the absence of an employment relationship: "From the witness evidence before the Commission, I am not satisfied that the [worker] was ever employed by the [employer], rather the [worker] was participating in a recruitment process of which she was ultimately not the successful candidate."
The Commission found there was "no evidence that the [worker] had been offered either verbally, or in writing, a contract of employment to commence work with the [employer] or that the [worker] had commenced employment with the [employer]." This finding was fundamental to the Commission's conclusion.
The FWC concluded: "Having determined that the [worker] was not employed by the [employer], the application under section 365 of the Act is dismissed for want of jurisdiction." The Commission found that without an established employment relationship, it lacked jurisdiction to hear the general protections claim, effectively ending the worker's case before it could be examined on its merits.
