s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether applicant was dismissed - no relationship of employment - objection upheld - no dismissal.

[1] Ms Anastasia Perri has made a general protections involving dismissal application under s365 of the Fair Work Act 2009. This decision deals with the jurisdictional objection to the application raised by Oral Health Victoria (OHV), that Ms Perri was not dismissed within the meaning of s368 of the Act.

[2] On 31 October 2025, OHV and Ms Perri signed a contract of employment. The contract provided that:

1. the employment will commence on 1 December 2025;
2. the employment is subject to the successful completion of pre-employment screening; and
3. Pre-Employment Checks require a successful outcome with respect to a police check, evidence of immunisation, two successful reference checks, successful work rights.

[3] On 27 November 2025, the Operations Manager sent Ms Perri an email extending a "warm welcome," confirming her 9am start on Monday 1 December 2025, providing detailed onboarding instructions (who to contact on arrival, proxy card arrangements, hospital tour, rostered shifts), advising that on her 'first day' she could start at 9am and that the Operations Manager was "looking forward to you starting Monday."

[4] On 28 November 2025, OHV advised Ms Perri that the offer of employment was withdrawn following a due diligence process.

• [5] The question is whether an employment relationship existed before 28 November 2025.[1] This is a question of fact.[2]

• Ms Perri and OHV had entered into a contract of employment for an ongoing role as a Patient Access Officer to commence at a specified future date, 1 December 2025.
• The required Pre-Employment Checks had been completed, raising no issues.
• Ms Perri had received the 'welcome' email of 27 November 2025.
• On 3 November 2025, Ms Perri resigned from her previous employment in reliance on the contract.
• Ms Perri had not performed any work for OHV nor had she been required to attend any training, meetings, complete onboarding or similar after signing the contract on 30 October 2025.
• The employment commencement date of 1 December stipulated in the contract, had not been reached.

• [7] The Applicant submits that an employment relationship existed from the date the employment contract was executed, on 31 October 2025.[3] The Applicant relies on the following passage of the Full Court of the Federal Court decision in Alouani[4]:

"At least for present purposes, distinctions between employment relationships and employment contracts are artificial: the termination of an employment relationship and the termination of an employment contract are the same thing. Employment relationships can be created, changed and brought to an end; but ... only ever upon the execution, variation or termination of an employment contract. That being so, the reference in s 386(1)(a) of the FW Act to 'the person's employment with his or her employer [having been] terminated' can only be understood as a reference to the person's contract of employment being brought to an end ..."

[8] The Applicant submits, based on this passage, that Ms Perri's employment relationship came into existence on 31 October 2025 when the contract was executed and not on 1 December 2025 when work was to commence.

• [9] However, read in context, I do not agree with the Applicant's submission that the Full Court held, as a general principle, that an employment relationship invariably commences upon execution of an employment contract. That is not, with respect, what the Full Court states in the passage and is contrary to long-standing authority. The reference in the passage to "for present purposes" was made whilst considering the appellant's submission that the respondent, by not renewing the engagement of the appellant whom it had previously engaged on a series of fixed-term contracts, had dismissed the appellant. In any event, the passage is obiter, as the appeal was decided on other grounds.[5]

• [10] During the period after an employment contract is executed to commence work at a later date and the start of work, the ordinary position is there is an employment contract but no employment relationship in place.[6]

• [11] The Full Bench made a similar point in Kelly v Melba Support Services at [20]-[21].[7]

Unless and until an employment relationship exists, it cannot be terminated.

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. (footnotes removed)

[12] There is good reason for this. If, for example, employment commences from the date a contract is signed, the employee's period of service and employment entitlements may commence well before any service is performed. Further, on the Applicant's submission, her full-time employment with the Respondent commenced whilst she was still employed by her previous employer, as she resigned from that position on 3 November 2025. It cannot have been the intention of the parties that the employment commenced, and rights and obligations abide, whilst the applicant was still in the employ of another employer.

• [13] The Applicant also relies on the decision in Argentier v City Perfume Retail Pty Ltd.[8] However, that decision is not analogous to Ms Perri's situation. Importantly, the Deputy President found in that case that the employment commenced on 18 April, including for the purpose of calculating long service leave and other entitlements. The employment offer was withdrawn and the contract terminated later that day, that is, after the employment had commenced. Further, all onboarding had been completed, the applicant was available to be rostered to work before the offer was withdrawn, had rostered shifts removed, had been required to attend a training session and had attended a further meeting in person. Importantly, the employment in Argentier was for employment on a casual basis.

• [14] The question of when an employment relationship commences in the context of casual employment is more complex. As Irving also observes: [9]

Ascertaining when the employment relationship of a casual worker commences can be perplexing. In some senses both a zero hours casual and those engaged under an umbrella contract are in employment relationships. But does the employment commence once placed on the books, or only when an employee accepts an offer to work a particular shift, or only when work is performed? There is no single correct answer in all contexts. Careful scrutiny of the terms of the contract, statute or industrial instrument regulating the engagement will reveal whether it is the formation of the contract, or the relationship, or the commencement of the performance of work that gives rise to the benefit or status in dispute. (footnotes omitted)

[15] I find that on 28 November 2025 there was a contract for future employment but there was no relationship of employment. The Applicant's employment with the Respondent had not commenced before the offer of employment was withdrawn on 28 November 2025. The applicant's period of service had not commenced, no work had been performed, she had not attended the workplace, she had not been directed to take any action other than to fill-out pre-employment documents to enable Pre-Employment Checks. Therefore, the Applicant was not dismissed and cannot make the general protections application involving dismissal.

[16] However, whilst I have found that Ms Perri was not dismissed and is not able to make an application under section 365 of the Act, a prospective employer who refuses to employ a prospective employee for proscribed reasons contravenes other general protections provisions such as section 346 of the Act and Ms Perri may be able to make an application in respect of any such alleged contravention.

[17] The application in C2025/12964 is dismissed.

H Rind of Yarn Legal, with permission on behalf of the Applicant

Mr N Ruskin of K&L Gates, with permission on behalf of the Respondent

[1] Khayam v Navitas English [2017] FWCFB 5162 at [75].

[2] Kelly v Melba Support Services Australia Ltd [2021] FWCFB 4845 at [20].

[3] The Applicant's alternative argument in its submissions that the employment relationship existed from 1 December 2025, was withdrawn at the hearing.

[4] Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 at [63].

[6] Irving M, The Contract of Employment 2nd Edition 2020 at 1.29, p.34. See also 4.2; See also Rising v Barto Gold Mining Pty Ltd [2025] FWC 1405.

[7] Kelly v Melba Support Services Australia Ltd T/A Melba Support Services [2021] FWCFB 4845 at [20]- [21].

[8] [2023] FWC 1819.

[9] Irving, M, The Contract of Employment 2nd Edition 2020 at 4.2, p.181.

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