Fair Work Act 2009

s.365 - General protections

Application to deal with a general protections dismissal dispute - whether dismissed

• [1] Mr Abhishek Bhagat has applied to the Commission to deal with a dispute under s.365 of the Fair Work Act 2009 (Act). Mr Bhagat alleges that he was dismissed by Excis Australia Pty Ltd (Excis) in contravention of the general protections provisions in Part 3-1 of the Act.

• [2] Excis objects to the application. It submits that Mr Bhagat was not employed by Excis and so could not have been dismissed for the purposes of the Act.[1] If the submission is correct, Mr Bhagat has no standing to apply to the Commission under s.365.

• [3] The question is whether Mr Bhagat was dismissed by Excis. The answer is 'No'. At the time of the alleged dismissal, Mr Bhagat was not employed by Excis. The application will be dismissed.

• [4] On 4 June 2025, Mr Bhagat wrote to Mr Martin Greyling (Head of Delivery EMEA - Service Delivery) about the offer of a position with Excis, including a request that the offer match his current salary. The parties exchanged correspondence over the following days and on 10 June 2025, Mr Bhagat advised Excis: 'I want to go ahead with this offer'.

• [5] On 11 June 2025, Mr Bhagat advised a client of Excis that he had decided to 'stay here and continue working' and that he had accepted an offer from Excis, even though it was lower than what he was receiving from his former employer.

• [6] On 13 June 2025, Mr Bhagat followed up with Excis because he had not yet received 'the offer letter'. Mr Bhagat indicated that if the offer was received over the weekend or the following Monday, he 'should be able to review and finalise it by Tuesday' and his 'tentative ETA to join the site would be between 18th and 19th June 2025.

• [7] Later on 13 June 2025, Excis sent Mr Bhagat a letter of offer of employment. The letter included these statements:

'Please confirm your acceptance of this offer by signing and returning this letter as soon as possible to enable us to proceed with your Employment Work Agreement.

Please note that this letter is an offer only and subject to the completion of an Employment Work Agreement setting out all the terms and conditions of your employment with Excis Australia.'

• [8] Later again on 13 June 2025, Mr Bhagat was asked to attend an Excis worksite 'on Monday'. In response, on 14 June 2025, Mr Bhagat advised that he was awaiting his migration agent's review of the documents; that he would sign the documents once he had approval from his agent; that he did not think he would be able to join until then; and that most probably, he would 'join on Tuesday or Wednesday'.

• [9] At 3.00am on 16 June 2025, Mr Bhagat sent a list of enquiries from his migration agent that he wanted clarified. This included enquiries about award coverage, superannuation, employment type, workplace policies, dispute resolution processes, right to work checks and notice periods.

• [10] At 8.32am on 16 June 2025, Mr Greyling replied to Mr Bhagat advising that the offer letter was a standard format for all employees; that a fixed-term contract would be shared once he had 'formally accepted the offer' and that Excis was not willing to make any amendments to the offer letter. Mr Greyling asked Mr Bhagat to confirm 'whether you accept the offer' and noted that if he did not receive a response by close of business that day, he would 'assume that you have chosen not to proceed with the offer'.

• [11] Mr Bhagat did not accept the offer in the timeframe provided.

• [12] At 5.38pm on 16 June 2025, Mr Greyling wrote to Mr Bhagat advising that Excis would 'not be able to move forward with the offer as we can't afford to stall this process any longer'.

• [13] Mr Bhagat alleges that he was employed on 16 June 2025 and dismissed the following day, but the facts do not bear this out. Mr Bhagat was sent an offer of employment with a 'tentative date' for commencement of his employment of 16 June 2025. Mr Bhagat submits that he had received and accepted an earlier offer from Excis in writing, although no evidence of a second or earlier offer of employment has been provided. It may be that Mr Bhagat is referring to his advice to Excis on 10 June 2025 (extracted above). On the facts, this was an invitation to Excis to formalise its offer of employment for Mr Bhagat to consider, which it later did on 13 June 2025. The offer of employment was conditional in nature. It was subject to the completion of an 'Employment Work Agreement' and there is no evidence that any such agreement was made.

• [14] Mr Bhagat did not accept the offer of employment from Excis in the timeframe it had requested. Excis then decided to withdraw the offer of employment. The result was that no contract of employment was formed between the parties. It follows that Mr Bhagat cannot have been dismissed from employment with Excis.

• [15] The jurisdictional objection is upheld. Mr Bhagat's application under s.365 is dismissed.

[1] Fair Work Act 2009 (Cth), s.386

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