Is an 'employment offer withdrawal' considered dismissal?

Western Australia’s Public Service Appeal Board (PSAB) has dealt with the case of a worker who argued he was unfairly dismissed from employment after the employer withdrew the job offer by email before he could even begin any work.

Despite the worker’s contention, the PSAB still favoured the employer as it found there was no employment to begin with because the worker never explicitly accepted the job offer.

Background of the case

According to the Western Australian Industrial Relations Commission’s (WAIC) news release, the employee worked as an ICT Help Desk Officer in a series of fixed-term contracts to 30 November 2021.

After the said date, the respondent offered the worker a further three-month fixed-term contract. “Pursuant to government mandates in place at that time, the contract of employment was conditional to the employee providing evidence of vaccination against COVID-19,” WAIC noted.

“The appellant did not sign and return the contract, and did not provide evidence of his vaccination against COVID-19 or status as an exempt person,” it added.

Thus, before the employee began any work under the new fixed-term contract, the employer revoked the offer by email on 16 December 2021, as the clause is clear that a condition of the employment was to be vaccinated against COVID-19.

The worker then initiated an appeal under s 80I(1)(d) of the Industrial Relations Act 1979, citing the job offer withdrawal in December as a cruel and inappropriate way to dismiss him from employment.

“The appellant contended that an email sent on  13 December 2021 to the respondent effected their acceptance of the contract because it was in similar terms to a previous offer and acceptance,” the Commission said.

“The appellant further contended that the vaccination clause was ambiguous, and on a correct construction, only required vaccination to the extent that the Directions require vaccination,” it added.

Meanwhile, the employer argued that the worker disagreed with the vaccination terms stated in the contract and that there was no implied acceptance of the job.

Board’s findings

The PSAB found that the worker was not dismissed and that the employment relationship ended by the expiration of a fixed-term contract.

Moreover, the Board said that the conditions stipulated in the contract obviously stated that an employee must provide evidence of vaccination against COVID-19 or proof of being exempted by such.

“The Board agreed with the respondent’s contention that the appellant remained in furious disagreement with the terms and that the email sent by the appellant on 13 December 2021 email was, in fact, evidence of continued dispute, disagreement and indecision,” WAIC said.

“The appellant did not accept ongoing employment before the respondent withdrew its offer, which it was entitled to do, and that the decision to withdraw the offer was not within the jurisdiction of the Board to consider,” it added.