When does employment begin?; the law

This extract from a recent decision of a Full Bench of the Fair Work Commission deals with the distinction between a contract of employment and an employment rerlationship, which can sometimes be crucial.


[19] If a person has been dismissed and the person or their representative alleges that the person was dismissed in contravention of Part 3-1 (general protections) of the Act, then the person may apply to the Commission for it to deal with the dispute. 15 It is a condition of a person’s entitlement to make an application under s 365 of the Act that the person “has been dismissed”.16 If there is a dispute as to whether the person “has been dismissed”, the Commission has jurisdiction and power to resolve the dispute and must resolve it before exercising the powers conferred by s 368 of the Act to conciliate or otherwise deal with the application (other than by arbitration).17

[20] The respondent raised a dispute before the Deputy President as to whether Ms Kelly had been dismissed. The meaning of dismissed is governed by s 386 of the Act. As the Deputy President correctly observed, “the analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to the termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment.” 18 Whether an employment relationship exists is a question of fact.19 Unless and until an employment relationship exists, it cannot be terminated.

[21] Although there can be no employment relationship without a contract of employment, a contract of employment may come into existence before an employment relationship is formed. 20 For example, an employer and an employee may enter into a binding contract for the employee to commence employment with the employer in, say, six months’ time. If the offer of employment is withdrawn after the contract has been made but before the employment commences, the employer may be liable for breach of contract but the employment relationship will not come into existence.21

[22] Importantly, in this appeal Ms Kelly has not challenged the Deputy President’s clear finding that there was never an employment relationship between Ms Kelly and the respondent. 22 Absent a successful challenge to that finding, Ms Kelly’s appeal against the Deputy President’s conclusion that Ms Kelly was not dismissed cannot succeed.”

Kelly v Melba Support Services Australia Ltd T/A Melba Support Services (2021) FWCFB 4845 delivered 6 August 2021per- Catanzariti VP, Saunders DP, McKinnon C and Ryan C