FIFO worker faces start date dispute in unfair dismissal claim
The Fair Work Commission (FWC) recently dealt with an unfair dismissal application that hinged on a contentious employment start date.
The worker argued that his employment began when he attended company-mandated training sessions, several days before he was scheduled to start on-site work. He claimed the date agreed with his manager differed from what appeared in his written employment contract, which he signed without noticing the discrepancy.
The employer insisted the worker's employment couldn't have started before the date specified in his signed contract, pointing to an "entire agreement" clause that supposedly invalidated any prior arrangements. The case raised important questions about when employment legally begins and how verbal agreements interact with written contracts.
The case involved a Fly-In, Fly-Out (FIFO) worker who filed an unfair dismissal application against mining services company SodexoRemote Sites Australia Pty Limited. The employer argued the worker wasn't eligible for unfair dismissal protection.
The Fair Work Act 2009 (Cth) requires workers to complete a minimum employment period before they're protected from unfair dismissal. For businesses with 15 or more employees, this period is six months. The worker was dismissed on 4 September 2024, meaning he needed to have started on or before 4 March 2024 to qualify for protection.
The worker claimed he started on 28 February 2024 when he attended company-mandated training, while the employer insisted his employment began on 6 March 2024 when he first arrived on site, as stated in his written contract.
The FWC conducted a hearing on 18 December 2024, with the worker giving evidence alongside two witnesses for the employer – a talent acquisition consultant and a regional facilities maintenance manager for the Upper East Pilbara region.
The worker had previously worked for the employer from April 2019 to July 2022. In early 2024, he contacted a regional facilities maintenance manager about available FIFO roles and was offered a position as a facilities maintenance supervisor.
Evidence presented at the hearing showed the worker and the regional manager initially agreed to a 28 February 2024 start date, with the worker assigned to the 'A-Swing' on an 'eight days on, six days off' roster.
However, about a week before this date, the regional manager asked the worker to switch to the 'B-Swing' because another supervisor had resigned. This change meant the worker would fly to the site on 6 March 2024 instead of 28 February 2024.
Despite this roster change, on 22 February 2024, the worker received notification that he was booked to attend Aveling Fire Training on 28 February 2024 and company onboarding training on 29 February 2024. These training sessions occurred during what would have been his rest and recovery period between work rotations.
The FWC heard conflicting testimony about a phone call between the worker and the talent acquisition consultant during the onboarding training. According to the worker, when told his start date would be 6 March 2024, he explicitly stated his start date was 28 February 2024 as per his agreement with the regional manager.
The talent acquisition consultant's recollection differed, claiming she simply advised him about his contract request with the 6 March start date.
On 29 February 2024, the worker signed his employment contract which specified a 6 March 2024 start date. The worker claimed he didn't notice this discrepancy when signing.
The issue came to light on 4 May 2024, when the worker emailed the regional manager about the matter:
"Hi, as discussed with you last month, my agreed starting date was 28/02/2024. This was going to be my first swing but due to [the employer] operational requirements with [other supervisor] resigning I was asked to do a swing change. This however did not change my starting date with the company and just meant that I would start on my R&R cycle. When I was called by [the talent acquisition consultant] and she asked what my starting date was I told her 28/02. She told me that I don't get paid for R&R and that my starting date will be 06/03...so I left it there."
This email highlighted the worker's understanding that changing swings wouldn't alter his employment start date, merely that he would begin employment during his rest period rather than on site.
The regional manager forwarded this email with the comment: "Hi [colleague], Can you please assist with next steps to resolve this. It was my request to alter start date. This has impacted [the worker] financially. Thanks, [the regional manager]." Following this correspondence, the employer paid the worker two days' wages.
The worker's legal submission focused on the existence of an oral contract alongside the written one. His argument cited a recent Full Court of the Federal Court decision in EFEX Group Pty Ltd v Bennett, which noted that "...the terms of an oral contract may be able to be inferred from the circumstances, including in whole or in part from the parties conduct or course of dealing between them, or implied where necessary for business efficacy..."
Based on this precedent, the worker argued that evidence supported finding an oral employment agreement, or at least an oral term within the employment contract, establishing 28 February 2024 as his start date.
The employer maintained that 28 February 2024 was merely a "target" start date, not the actual commencement date. They argued the worker's employment formally began only after completing all pre-employment checks, training requirements, and receiving his final employment offer.
The employer relied on the written contract, pointing to Schedule A which explicitly stated a 6 March 2024 start date. They also highlighted Clause 27, which stated the contract "contains the entire understanding between the parties concerning the subject matter of the contract and supersedes all prior communications between the parties." The employer argued this clause, known as an "entire agreement" provision, meant the written start date should prevail.
The FWC's decision clarified that while the case of EFEX Group Pty Ltd v Bennett established that written contracts determine the character of legal relationships, the dispute here wasn't about whether an employment relationship existed, but rather when it began.
The Commission found that alongside the written contract signed on 29 February 2024, the worker and employer had a separate agreement that employment began on 28 February 2024. The decision cited several key pieces of evidence:
"[The worker's] and [the regional manager's] evidence that [the worker] was to mobilise to site for a Wednesday 28 February 2024 start. [The employer] directed [the worker] to attend the Aveling Fire Training and [the employer] Onboarding Training on Wednesday 28 and Thursday 29 February 2024 when his site mobilisation date changed. [The employer] paid [the worker] for his attendance at the Aveling Fire Training and [the employer] Onboarding Training."
The Commissioner pointed out that the training sessions couldn't be considered "pre-employment" activities because they weren't listed as such in the employment contract. The decision noted:
"The Aveling Fire Training and [the employer] Induction did not take place 'pre-employment'. [The worker's] written employment contract details 'pre-employment checks and requisite licences, authorisations and qualifications' as well as 'pre-mobilisation briefing' requirements. Neither the Aveling Fire Training nor the [the employer] Induction are listed under these categories."
Regarding the entire agreement clause, the FWC stated: "I find that Clause 27 of the contract cannot negate that [the worker] had commenced work at an earlier date. It is simply not sensible to suggest that where a contract specifies a different employment start date to what occurred, that another term of that contract can wipe that reality out."
Based on this analysis, the FWC ruled the worker had served the minimum employment period required under section 382 of the Fair Work Act 2009 (Cth) and was therefore protected from unfair dismissal. The matter will now proceed to determine the merits of the unfair dismissal application.
