In a recent unfair dismissal case, the Fair Work Commission (the “FWC”) faced the question of whether the applicant had ever commenced employment and, if so, when. The applicant (“Mr P”) asserted that his start date was 29 January 2024 as agreed in a post-contract email whilst the respondent alleged that Mr P’s failure to complete his onboarding tasks demonstrated employment commencement had never occurred. The FWC found that the specific terms of the contract were critical in answering the question of whether Mr P had, in fact, commenced employment with the respondent, and if so, what was the correct start date. 

Background 

In late December 2023, Mr P signed a contract with the respondent identifying that his “start date will be TBA in January or February 2024.” After further email exchange, the parties reached an agreement for the start date of 29 January 2024 and Mr P attended the office to perform work at the direction of the employer for three days (on 29, 30 and 31 January 2024). On 31 January 2024, Mr P was called into a meeting and directed to cease work. The respondent subsequently sent an email to Mr P on 15 February 2024 which confirmed “the end of the employment relationship” and noted that no further work would be provided and there was no alternative role identified for him. 

The parties’ claims 

Mr P filed an unfair dismissal claim. However, the respondent argued that Mr P was barred from bringing an unfair dismissal claim because Mr P had never been an employee and therefore, he could not have been dismissed.  

The respondent claimed Mr P had never commenced employment because he had not provided the required employee onboarding information prior to the process ending on 15 February 2024. This included information which related to verifying Mr P’s identity and other information required to complete the onboarding process and be entered as an employee in the respondent’s accounting systems.  

Did this Amount to the Employee Commencing Employment?       

The FWC found that the employee had, in fact, commenced employment on 29 January 2024 and that the absence of onboarding documents does not have the “legal effect” of meaning that the employment never started, based on the following reasons: 

• the employment contract was clear that the start date was to be “TBA in January or February 2024”; 
• the employment contract made no mention that the employment commencement was subject to the employee providing all the necessary onboarding paperwork to be completed; 
• the emails between the respondent and Mr P confirmed what was conveyed in the contract and specified the start date in writing; and 
• Mr P attended the office and performed work on 29 January 2024 and several days following. 

The FWC did note that failing to disclose the required onboarding information “was a substantial practical problem … that needed to be addressed” and that if the employee had continued to refuse to provide the required onboarding information, the respondent would have had grounds to dismiss the employee as it would have amounted to a refusal to follow a lawful and reasonable direction. Nonetheless, this refusal would not have equated to never being employed in the first place. 

The FWC also made it a point to clarify that the employee’s employment ended on 15 February 2024 (rather than 31 January 2024 when he was directed to cease work) because a dismissal does not take effect until it is communicated to the employee. 

Key Takeaways: the importance of contracts and onboarding 

Employers should be mindful of the importance of employment contracts and onboarding practices.  Specifically: 

• Employers should ensure employment contracts include clear terms and conditions to effectively communicate to a new hire the parameters of employment.  
• Implementing a best practice onboarding process not only delivers a positive “first impression” and onboarding experience for a new hire, but also ensures that an employer is reducing business risk by complying with any legal obligations in relation to onboarding a new hire. For example, employers must fulfil their obligations in relation to ensuring a worker is eligible to work in Australia and qualified to perform the role competently. 
• Employers must avoid having proposed employees performing work prior to the date on which the employment relationship is intended to commence. 

How PCS can help 

PCS is well versed in the field of employment commencement, particularly in creating tailored employment contracts and interpreting the terms of such contracts, as well as assessing the effectiveness and compliance of an organisation’s onboarding process.