Claims he already relocated possessions to employer's accommodation
The Fair Work Commission (FWC) recently dealt with a jurisdictional dispute involving a general protections application. The case centered on whether a worker was actually employed at the time their job offer was withdrawn, and whether their application could proceed given it was filed outside the statutory time limit.
The worker argued that he had been unfairly dismissed after being offered a position to manage a farm in Tasmania. He claimed that he had already started moving his belongings into the farm's accommodation and had made arrangements to bring his livestock to the property.
The worker said that these actions demonstrated the beginning of an employment relationship, despite not having officially started work on the agreed date.
Furthermore, he argued that exceptional circumstances should allow his application to proceed, even though it was filed after the standard 21-day limit.
The core issue in this case was whether the worker could be considered an employee when the job offer was withdrawn. The employer argued that while a contract had been offered, employment hadn't actually begun.
The case involved a farm in Tasmania near Smithton. The worker said that around 20 June 2024, he had a conversation with two directors of the employer and a farm manager about managing the farm for the upcoming milking season from 1 July 2024 to 30 June 2025. The employer said they offered employment to the worker on 21 June 2024.
Further discussions took place, including negotiations about whether the worker could bring his own livestock to the property. On or around 23 June 2024, one of the directors provided the worker with a proposed employment contract. The contract specified that the worker's employment would start on 1 July 2024, or as agreed.
The FWC emphasised the distinction between terminating an employment relationship and terminating employment itself. As stated in the decision:
"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. 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 If the offer of employment is withdrawn after the contract has been made but before the employment commences, the employer may be liable for breach of contract but the employment relationship will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."
The FWC said that this distinction is crucial because protections under the Fair Work Act, such as those for unfair dismissal or general protections, only apply when a person has been "dismissed" as defined in the Act.
The timeline of events played a significant role in the FWC's decision. While the job offer was made in late June, with a proposed start date of 1 July, it was withdrawn on 26 June, before the agreed-upon start date.
Later, another representative of the employer emailed the worker retracting the offer of employment on 26 June 2024. This led to hardship for the worker, not only because of lost future earnings but also because part of the arrangement included using a residence on the farm.
The FWC noted that while the worker had begun moving belongings into a provided farmhouse, this didn't indicate that employment had started. The decision stated:
"I accept [the employer's] case that the house would only have become [the worker's] to use when the employment arrangement was set to commence, and that moving belongings to the house before 1 July 2024 did not signal that employment commenced before that date. It was not put by [the worker] that he had begun living in the house."
The worker's application was filed 22 days after the statutory time limit expired. The FWC considered whether there were exceptional circumstances that would warrant an extension of time.
The worker explained that he only became aware of a general protections application as an avenue of remedy a few days before actually making the application. He said he didn't know about the 21-day statutory filing limit until close to the time he made the application. However, the FWC has consistently held that such lack of awareness is not an acceptable reason for late filing.
Ultimately, the FWC determined that the worker was not employed at the time the offer was withdrawn. As stated in the decision:
"Difficult though the situation is for [the worker], a finding is not available to me that he was employed at the time of the withdrawal of the offer of employment. It follows that a finding is not available to me under s.386 that [the worker] was dismissed on 24 June 2024."
Regarding the possibility of an extension of time, the FWC concluded:
"Having made this finding, it is unnecessary for me to consider in detail [the employer's] extension of time objection. However, it is appropriate for [the worker's] purposes for me to deal with the matter briefly. In short, I am not satisfied that there are exceptional circumstances that would cause me to allow a further period to [the worker] for the making of his general protections application."
The FWC also noted:
"Consequently, I must find that [the worker's] general protections application is without jurisdiction, as he has not been dismissed, which is the prerequisite in s.365."
These findings highlight the importance of understanding employment law timelines and the legal distinction between job offers and actual employment commencement. The case serves as a reminder for both employers and workers to be clear about when employment officially starts and the legal implications of withdrawing job offers.
