s.365 - General protections

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

• [1] On 8 August 2025, Mr Oisin Donohoe applied to the Commission to deal with a general protections dispute involving dismissal under section 365 of the Fair Work Act 2009 (the Act). The application alleges contraventions of the general protections by Safe Hands Group Pty Ltd and its Regional Manager.

• [2] Section 365 of the Act allows a person who has been dismissed to apply to the Commission to deal with a dispute about the dismissal. The question is whether Mr Donohoe has been dismissed. I have decided that the answer is 'No'. The application will be dismissed.

• [3] A dispute under section 365 is a dispute about the allegation that a person was dismissed in contravention of the general protections in Part 3-1 of the Act. Sections 12 and 386 define the word 'dismissed' for the purposes of the Act. Relevantly, only an employee can be dismissed.[1]

• [4] On 28 February 2025, Mr Donohoe was offered employment for the position of Rapid Response Services with Safe Hands Group. The role was offered as part of an ongoing partnership between Safe Hands Group and other entities for a fly in, fly out assignment in Nauru. Mr Donohoe accepted the offer on 1 March 2025. For reasons that appear largely out of the control of Safe Hands Group, there were repeated delays to the promised deployment to Nauru. This caused Mr Donohoe significant frustration, and he made this clear to Safe Hands Group. Eventually, Safe Hands Group responded on 29 July 2025 by effectively withdrawing the offer of employment. This meant Mr Donohoe was never deployed to work on Nauru.

• [5] In Bergman v Broken Hill Musicians Club Ltd,[2] principles relevant to whether there is a binding contract of employment were described as follows:

"The law requires that there are certain basic essential requirements or elements for an agreement to be legally enforceable as a contract. These are described in Professor Andrew Stewart's book, Stewart's Guide to Employment Law and in various other forms in texts such as Macken, McCarry & Sappideen's The Law of Employment as being the following essential elements:

• The parties must have reached agreement as to the terms of the contract.
• The agreement must involve the provision of "consideration" by each party.
• The agreement must be intended by the parties to be legally enforceable.
• The terms of the agreement must be certain and complete and there must be no element of illegality or any other vitiating factor that would deprive the agreement of legal effect."

• [6] In this case, the offer of employment made by Safe Hands Group and accepted by Mr Donohoe is evidence of an agreement between the parties as to the 'key terms and conditions' of Mr Donohoe's employment.

• [7] The offer of employment involves the provision of consideration by each party. Mr Donohoe offers to perform duties in the Rapid Response Services position in Nauru in return for a promise from Safe Hands Group of full-time employment with an 'initial term of 12 months' on an annual salary of $120,000.

• [8] The offer of employment is also evidence of an intention by the parties to become legally bound by its terms although at a future time rather than immediately. The role description is 'FIFO (Fly-In Fly-Out) assignment in Nauru'. The duties to be performed can only be performed in the context of operational work on-site in Nauru. Induction will occur only 'upon [Mr Donohoe's] arrival in Nauru'. Mr Donohoe is required to open and maintain a bank account in Nauru so that his salary can be paid 'exclusively' into this account. In those circumstances, Mr Donohoe cannot have expected to be paid until after opening a bank account in Nauru and providing the details to Safe Hands Group. Further instruction and support about account setup is to be provided 'prior to deployment', and further information about the role was to be provided during an on-site induction. The term 'FIFO Continuity' (which I read to mean continuity of service) was expressed as 'strictly tied to [Mr Donohoe's] active employment'. Each of these provisions is consistent with an arrangement the parties intended to commence at some future time (upon deployment to Nauru).

• [9] Other terms of the offer of employment are capable of operating immediately, including provision for a 12‑month term of full-time employment and a requirement to adhere to all company policies, procedures and relevant laws as mandated by Safe Hands Group and relevant authorities. Employment is terminable on 2 weeks' notice with payment of outstanding entitlements on termination as required by law. The terms of the offer of employment can only be varied by agreement in writing. By the letter of offer, Safe Hands Group requests Mr Donohoe to sign and return a copy of the letter by 2 March 2025 'to confirm your acceptance and secure this offer'. Mr Donohoe acted as he had been requested to do. On this basis, I consider the parties to have intended their agreement to be legally enforceable although only from the time of deployment to Nauru.

• [10] When the offer of employment was accepted by Mr Donohoe, its key terms were not yet certain or complete. The most significant of these was the absence of any start date. Further, the offer 'and 'any subsequent employment contract' was to be governed by the laws of Victoria, suggesting that a formal employment contract was intended to follow. There were also a number of conditions precedent to employment, including pre-employment checks, a valid passport and current first aid certificate, and the offer being made conditional on obtaining and maintaining a valid work visa for Nauru. To this end, the 'Employer' promised to facilitate and finance the necessary visa arrangements 'upon receiving the required information' from Mr Donohoe.

• [11] A reading of the offer of employment as a whole tells against the conclusion that the parties had finalised the terms of an employment contract such that they had entered into an employment relationship. Subsequent events did not alter this position, other than by reinforcing the uncertainty as to commencement, before the offer of employment was withdrawn.

• [12] Mr Donohoe was not an employee of Safe Hands Group at the time of the alleged dismissal. He was a prospective employee. The absence of an employment relationship means that Mr Donohoe was not (because he could not have been) dismissed for the purposes of the Act. He was not entitled to apply to the Commission to deal with the dispute under section 365.

[1] Grass v NSW Chinese Tennis Association Inc [2021] FWCFB 3443

[2] [2011] FWA 1143

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