s.365 - Application to deal with contraventions involving dismissal

Commonwealth of Australia as represented by the National Disability Insurance Agency

Application to deal with contraventions involving dismissal - jurisdictional objection - whether the Applicant was an employee of the Respondent - found no employment relationship existed - Applicant not dismissed - objection upheld - application dismissed

• [1] On 13 February 2025, Mr Bendon Heinis (the Applicant) lodged a general protections application against the Commonwealth of Australia represented by the National Disability Insurance Agency (NDIA) (the Respondent) under s.365 of the Fair Work Act 2009 (the Act). His application acknowledges that he received an "offer of employment" from the NDIA to commence work on 10 February 2025, but was advised on 24 January 2025 that this "offer" was rescinded, and he was "dismissed".[1]

• [2] The Applicant's submission is that his offer of employment was rescinded because on 22 January 2025 he disclosed that he lived with a disability, being a protected attribute constituting adverse action against him under the general protection provisions.

• [3] The Respondent objects to this application on grounds that the application under s.365 must fail and be dismissed by the Commission because Mr Heinis was not an employee within the meaning of the Act and therefore could not have been dismissed.

• [4] Due to the decision in Coles Supply Chain Pty Ltd v Milford,[2] I am required to determine the jurisdictional objection of whether the Applicant was dismissed before I can exercise powers under s.368 of the Act to deal with the dispute about whether the dismissal contravened the general protections provisions.

• [5] Following an initial mention, my Chambers issued directions for the matter to be determined. Parties were required to file submissions on the jurisdictional question of whether the Applicant was an employee and had been subject to a dismissal. A hearing was scheduled for 23 April 2025 in Melbourne.

• [6] This decision is only concerned with the jurisdictional questions: whether the Applicant was an employee and had been subject to a dismissal. For reasons that follow, I have found the Applicant was not an employee of the Respondent and therefore he could not have been dismissed.

• [7] In advance of his position, Mr Heinis submits that on 7 January 2025 he received a letter of offer of employment from the NDIA that he promptly signed and returned. He was told his commencement date was scheduled for 10 February 2025. Prior to receiving his formal letter of offer he was told by his NDIA hiring manager, Ms Wise, that once he received his letter of offer, he should resign from his existing employer and did so.[3]

• [8] He completed and returned a NDIA Privacy Declaration and confidentiality agreement confirming his "engagement pursuant to the Public Service Act 1999" on 8 January 2025. On the same day, as requested, he sought to contact Ms Wise, to discuss "onboarding arrangements". Ms Wise was unavailable. On 13 January, he called Ms Wise again and made contact. He discussed his future role, opportunities and "onboarding" steps with Ms Wise expressing his eagerness to make a positive difference to the agencies and its important work. He says that Ms Wise told him his "onboarding" was completed and that the only thing remaining was to source and confirm who his line manager would be. [4]

• [9] On 22 January 2025 Mr Heinis had a further discussion with an agency Disability Liaison Officer (DLO) to discuss workplace arrangements, where he disclosed living with a disability and his caring needs for children with disability. He authorised the DLO to confer with Ms Wise about his disability needs in the context of making any necessary adjustments to his workplace arrangements in advance of his commencement date on 10 February 2025.

• [10] On 24 January 2025, Mr Heinis received a letter advising him the "offer of employment had been withdrawn". The basis that of this decision was that the NDIA had concluded it was "not satisfied he was able to satisfy the conditions of engagement of an APS4 Access Assessor" because of his persistent phone calls and negative comments towards the agency and its work.[5]

• [11] Mr Heinis claims this "withdrawal of his offer of employment" is an illegal termination. That he had satisfied all pre-employment checks, confirmed his engagement under PS Act and confirmed his start date and resignation from his previous job. He denies he has made any negative comment towards the agency, engaged in persistent phone calls, or in any other way acted inconsistent with agency's purported values and core purpose. Further, that the claims against him are not only false, but that he has been denied any opportunity to be heard in response or have them properly investigated.[6] This fact he says is contrary to the core values and purpose of the NDIA, and has had the effect of discriminating against him because of his disclosed disability, defaming him and causing him loss and damage.

• [12] It is not contested and Mr Heinis accepted in proceedings that his offer of employment with the NDIA was contingent on his successful completion of pre-employment checks and background screening.[7] He also accepted that these conditions were communicated to him in the letter of offer he received on 7 January 2025, and that he understood the offer was subject to him meeting the conditions therein and that it could be withdrawn prior to commencement. Further accepting that his offer of employment was withdrawn on 24 January 2025 and that he did not commence work with the Respondent.[8]

• [13] Mr Heinis' letter of offer included the following paragraph:[9]

"Your engagement and continuing employment will be subject to you meeting the conditions of engagement outlined in Attachment B. Please carefully ready through these items prior to acceptance of this offer. If it becomes evident, at any time, that you will be unable to satisfy the conditions of engagement, the engagement may not proceed, or, if you have already been engaged, your employment may be terminated."

• [14] Attachment B set out the Conditions of Engagement, including the Respondent being satisfied of the Applicant's 'good character' and 'compatibility' with APS values, code of conduct and employment principles.

• [15] The Respondent's position is that on 24 January 2025 it advised the Applicant it was withdrawing his offer of employment because it was not satisfied he was able to satisfy the conditions of engagement of an APS4 Access Assessor role at the NDIA. This letter from Jillian Burgess, A/g BM Recruitment and Staff Development Representative for the Respondent also advised Ms Heinis as follows:[10]

"As advised to you in your letter of offer, your engagement was subject to being able to satisfy the conditions of engagement. The conditions include that you are of good character to undertake the duties of the role of APS4 Access Assessor at the NDIA, which involves representing the NDIA and applying the legislation and rules to access decisions.

I have become aware of behaviours that I am not satisfied that you are able to satisfy the conditions of engagement."

• [16] The Respondent's position was supported by the witness statement and sworn evidence of Mr Michael Gruber, NDIA Assistant Director Recruitment. Mr Gruber's evidence set out the recruitment and pre-employment practices of the NDIA and his involvement with the offer of employment, and its withdrawal, to Mr Heinis. Mr Gruber's evidence was presented because of its relevance to the jurisdictional questions of whether an employment relationship existed that Mr Heinis could be dismissed from the purposes of s.365.

• [17] Ms Wise was not presented to give evidence for the Respondent or requested to appear before the Commission. The Respondent denies Ms Wise told Mr Heinis he should resign from his previous employment. Further submitting Ms Wise was not presented to the Commission because her evidence goes to the question of why the decision to withdraw the offer of employment was made and that is not being examined by the Commission.[11]

• [18] In proceedings it was accepted there were practical challenges facing prospective employees in employment resigning from current positions prior to the commencement date with the NDIA when their employment has yet to commence.[12] Despite this, Mr Gruber's evidence was that the process the NDIA currently follows is that employment does not commence until the commencement date, that prospective employees are made aware of this fact and that offers of employment can, and on previous occasions have been withdrawn.[13] And further that this is the consistent approach of the NDIA as a Commonwealth Agency pursuant to section 22 of the Public Service Act 1999 (Cth).[14]

• [19] In relation to Mr Heinis, his evidence is that the material and documents provided to Mr Heinis as part of the NDIA's pre-employment process make clear his offer of employment was conditional. That it could be withdrawn any time prior to the commencement date and that Mr Heinis's proposed commencement date was 10 February 2025.[15]

• [20] I accept this submission. I appreciate Mr Heinis' frustration. His understanding is he did everything asked and required of him to accept his offer of employment. His subjective view however, is not enough to establish the existence of an employment relationship. Determining whether this employment relationship existed so that he could be dismissed is the pre-condition to his substantive claims being considered by this Commission.

• [21] The Applicant has made his application pursuant to s.365 of the Act which provides:

"365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."

• [22] "Dismissed" is defined in s.12 of the Act, which refers to s.386 of the Act. Section 386 of the Act relevantly provides:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

• [23] I have considered all the relevant evidence and submissions of the parties in coming to my decision, even if not expressly referenced in this decision.

• [24] In this regard, I am guided by the evidence that the Applicant's offer of employment was conditional on successful completion of the pre-employment requirements and that his employment would not commence until 10 February 2025. The evidence demonstrates the offer was conditional. Furthermore, it is not contested that Mr Heinis never commenced employment with the Respondent.

• [25] It is clear from the legislative provisions set out above (under which the application is brought) that unless and until an employment relationship exists, it cannot be terminated.[16] It is also accepted authority that s. 386 of the Act requires the Commission to make a positive finding that a person has been "dismissed" because their "employment with his or her employer has been terminated on the employer's initiative.[17]

• [26] In this case, the evidence is that the Applicant was neither employed nor had commenced employment with the Respondent. His application fails and must be dismissed on this basis.

• [27] In reaching this conclusion, I have had regard to the Applicant's submissions with respect to prospective employees and the general protections provisions. However, while these factors may be relevant to another application, that is not the application the Applicant has brought.

• [28] For the reasons set out above, the Applicant's s.365 application is dismissed for want of jurisdiction.

[1] See Applicant's F8, Court Book p.83-90.

[2] [2020] FCAFC 152.

[3] Applicant's submission on jurisdiction, Court Book p.17-18.

[5] See Withdrawal of Offer of Ongoing Employment, Court Book p.21-22.

[6] Applicants submissions of jurisdiction , Court Book p.17.

[7] Transcript of proceedings at PN 215-PN 220.

[10] See Withdrawal of Offer of Ongoing Employment, Court Book p.21-22.

[13] See Witness Statement of M.Gruber, Court Book p.44-49.

[15] See Witness Statement of M.Gruber, Court Book p.44-49.

[16] See Susanne Kelly v Melba Support Services Australia Ltd T/A Melba Support Services [2021] FWCFB 4845 at [20].

[17] Ibid. See also Wilson, C in Mr Michael Thomas Green v The Trustee for TRT Redmarsh Trust, [2024] FWC 2580 at [10]- [11].

Printed by authority of the Commonwealth Government Printer