For a person to be able to pursue an unfair dismissal case in the Fair Work Commission, the person must have at the relevant time been employed under a contract of service, or employment contract as it is commonly called.
At the heart of that relationship is a contract between the employer and the employee. This is what the Fair Work Commission’s unfair dismissal benchbook says about the legal elements of that contract.
“What is a contract?
‘The law holds that before any simple contract [including a contract of employment and a contract for services] is enforceable it must be formed so as to contain various elements. These are:
- There must be an “intention” between the parties to create a legal relationship, the terms of which are enforceable.
- There must be an offer by one party and its acceptance by the other.
- The contract must be supported by valuable consideration.
- The parties must be legally capable of making a contract.
- The parties must genuinely consent to the terms of the contract.
- The contract must not be entered into for any purpose which is illegal.’10
The contract is to be interpreted objectively according to its terms and not on the basis of the subjective beliefs of the parties.11”