Fair Work Act 2009

s.365 - General protections

Application to deal with a general protections dispute involving dismissal - no dismissal found - application dismissed.

[1] On 19 February 2021, Ms Susanne Kelly (the Applicant) lodged an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) with the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal. Melba Support Services submits that there was no employment relationship formed at the time and hence the applicant was not dismissed within the meaning of the Act.

[2] A Notice of Listing was issued to the parties on 11 March 2020 requiring the submission of evidence and materials in the matter. The matter was listed for a Mention on 3 May 2021 where it was agreed that the matter be dealt with on the papers. I provided a further opportunity to the parties to provide further evidence and supplementary submissions.

[3] I have had regard to all submissions and evidence.

[4] In or around December 2016, the Victorian Government decided to transfer its public disability services to the non-government disability sector. As part of this process, employees were seconded and then later transferred to direct employment with certain providers. In September 2020 the Applicant received a letter confirming the details of her transfer of her duties and received a letter of offer with employment said to commence on 1 January 2021. The letter of offer confirmed that the offer of employment was conditional on the Applicant satisfactorily completing safety screening requirements, including criminal history (police) checks, Working With Children checks and any other safety screening mandated by the Respondent.

[5] The Applicant attended the Respondent's office to sign the letter of offer and provide the Respondent with a valid Working with Children Check and four points of identification to allow the Respondent to complete a police check. It is at this point that the Respondent alleges that the Applicant failed to complete all the necessary preconditions to the letter of offer and did not provide a satisfactory police check or cooperate in obtaining a check. On 16 December 2021, the Respondent wrote to the Applicant to remind her that it was a condition of her employment commencing that she provide a satisfactory police check prior to 1 January 2021. On 30 December 2020, the Respondent extended the timeframe for the Applicant to comply with the conditions in the letter of offer to 31 January 2021.

[6] By 27 January 2021, the Applicant had not provided a completed police check to the Respondent in its view and the Applicant was advised by the Respondent that she had failed to meet the obligations required in the letter of offer in order for the employment to commence. On 10 February 2021, the Respondent wrote to the Applicant confirming that, due to her failure to meet the safety screening requirements, the employment offer had in effect lapsed, although the language used was 'termination of employment'.

[7] This matter has some peculiar features. The applicant was advised that she needed to provide a 'current' police check and cooperate in relation to the police check to gain employment, and was reminded of this on two occasions. The requirement was put on three occasions. She was given an extension of time to respond and behave appropriately. She did not respond, although she was represented and engaged in numerous discussions with the employer. The employer said that it has no record of such a check being received. It appears that somehow the applicant or her representative was unable to ring the employer on the telephone and respond orally instead of by letter or in addition to a written response, and accurately communicate and cooperate on the issue of police checks which she knew were required from the letter of offer and her own evidence about attempts to provide a police check. Overall this dispute was pointless and avoidable.

Applications brought under s.365 of the Act require that the person has been dismissed, in contravention of the general protections provisions:

(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."

[8] A summary of submissions is annexed to this Decision.[1]

[9] The employer offered the applicant employment in a letter of 29 September 2020. The offer and commencement of employment was expressed as conditional only:

'This Letter of Offer sets out the terms and conditions of Melba's offer of employment to you. This offer lapses 28 days after the date of this Letter of Offer.

Your employment commences on 1 January 2021 provided that:

1.1 . you accept employment with Melba as set out in this Letter of Offer by signing this Letter of Offer and returning it to [email address] within 28 days of the date of this Letter of Offer;

1.2. prior to 1 January 2021, you have satisfactorily passed any safety screening specified at clause 17 (Safety Screening);

1.3. as at 1 January 2021, you continue to meet the requirements listed in clause 18 (Inherent Requirements); and

1.4. between the date of this Letter of Offer and 31 December 2020 (i.e. immediately prior to the commencement date in clause 1), you are in continuous employment with the Department in a position seconded to Melba; i.e. during that period, your employment with the Department is not terminated.'

[10] One of the conditions of commencement of employment on 1 January 2021 was that the applicant has 'satisfactorily passed any safety screening specified at clause 17'. Clause 17 is in two parts.

Did the applicant cooperate with the respondent as required by clause 17.1?

[11] Clause 17.1 requires the applicant to 'cooperate with Melba' regarding safety screening checks:

'17.1. You must co-operate with Melba so as to enable us to perform criminal history record checks, Disability Work Exclusion Scheme checks, Working with Children checks and any other safety screening check mandated by Melba from time to time.'

[12] Did the applicant cooperate with Melba to enable them to perform the various checks in paragraph 17.1? Melba say they never received the 'current ... police check' referred to in clause 17.2. They wrote to the applicant on 16 December 2020 and 30 December 2020 stating that they had never received the current police check they required, firstly asking and then directing the applicant to provide it within three days. On 16 December, the Respondent wrote:

'A condition of your employment commencing with Melba (Letter of Offer Clause 1.2) is that you complete a police check, paid for by Melba. You were provided with a link and asked to provide 4 Points of Identification and return it to [email address].' (Email address omitted)

[13] The applicant did not respond to this letter.

[14] On 30 December 2020, the Respondent wrote:

'I write further to my letter to you of 16 December 2020 to advise that Melba has decided to extend the time available for you to comply with the safety screening requirements of your employment contract.

This extension applies up to and including 31st January 2021.

You are directed to supply Melba four points of ID to [email address] by the close of business on 31st January 2021.' (Email address omitted)

[15] There was no written or verbal response to this letter.[2]

[16] In my view it is incumbent on a potential employee to respond to letters of this kind which are specifically sent by the employer. Having regard to the specific subject matter, police checks and similar matters, it is also a legitimate expectation of an employer that a potential employee cooperate in relation to obtaining a police check and other matters because of the interests of the business in a police check. Finally, an obligation to reply may also be a matter of simple courtesy, treating the employer in a potential employment relationship with the respect that is due to the employer, just as an employee is entitled to a certain level of respectful treatment. Overall it is on its face odd and inappropriate that the applicant did not respond. It is prima facie evidence that the applicant did not cooperate with Melba regarding a police check as required by clause 17.1 of the letter of offer.

[17] Apart from the obligation on a person seeking employment to respond to such legitimate letters, a response enables appropriate discussions on what the employer requires and what the employee provides. The applicant did not for example explain in a reply letter that she had already provided a police check through 'Sara', and did not explain that Ms Northcote had already provided the police check, if she knew this. If the applicant had so responded, the employer would have been in a position to evaluate the March 2020 police check to see if it met their requirements and was for example 'current'. They now say that it does not meet their requirements and is not 'current'. There would have been a legitimate discussion between employer and potential employee over the issue. The applicant has deprived herself of the opportunity to explain and appears to have harmed her own interests.

[18] Is there anything that displaces this prima facie conclusion, that the applicant by failing to respond to these legitimate requests of the employer was not cooperating with Melba regarding police checks? Firstly, the applicant argued that she is unable to open letters attached to emails, because the technology is too complex.[3] However even if this is the case, it is odd that the applicant received these two letters and did not take action to contact the employer and advise them that she was unable to open the letters. This failure to contact the employer seems to show a lack of cooperation with the employer.

[19] Fortunately the letters were also sent hard copy by post,[4] so the applicant's lack of technology skills are not relevant. The applicant received a hard copy of the letters and was able to read them and note the requirements, and still the applicant failed to respond.

[20] I also note that the applicant is able to send emails, because the employer received emails from her.[5] There was it appears nothing to stop the applicant replying by email to the effect that she could not open the attachment. She did not do this, although this would have been the appropriate response. The applicant's alleged technological difficulties therefore do not appear to displace the conclusion that the applicant did not cooperate.

[21] A second reason advanced by the applicant was that Ms Adams represented her and this constituted the required cooperation. However there is nothing in the applicant's account of Ms Adams' representation which represented sufficient cooperation with Melba over a police check. The applicant argues for example that the applicant's March 2020 police check was provided to Melba and this might be sufficient. If the applicant through her representative Ms Adams was cooperating she would have responded to the letters sent by the employer and stated that a police check had been provided through 'Sara' or Ms Northcote. I accept that Ms. Adams may have been distracted by another dispute in relation to the matter, or may not have been told by the applicant about the letters, and make no criticism of Ms. Adams.

[22] A third reason advanced by the applicant was that this was a 'form letter' and therefore did not need to be responded to.[6] However it is not uncommon for a standard letter to be used in employment decisions. If a standard letter was not used and the applicant was singled out in the letter sent it is quite possible that some form of complaint would be made, such as inconsistent treatment or discrimination. Standard letters are useful because they deal with each of the employer requirements in a systematic way and enable an employer to be satisfied that each of the employer requirements in policy and after legal advice are met and meet the requirements of consistent treatment across the workforce. The applicant should welcome the form letter. The fact that it is a form letter does not alter the comments I made above.

[23] If the applicant had responded the employer might have been able to deal with the claim that the police check had been provided and that this was sufficient, or that an older police check had been provided, or that it was not sufficient, and engaged in a discussion with the applicant over the issue to clarify the situation.

[24] The applicant did not respond either personally or through her representatives to the legitimate requests by the employer for a current police check to be provided. In my view the employer is entitled to expect a response to those letters. It did not get a response.

[25] The applicant claims that the March 2020 police check was sufficient. The employer was not given an opportunity to explain itself and its requirements, and the applicant was not then able to respond to those explanations and requirements. The failure to respond to these specific letters from Melba is inexplicable. There was I find a lack of cooperation with obtaining police checks and possibly other matters as required by clause 17.1, and a failure to comply with clause 17.1. This means that the condition for employment commencing on 1 January 2021 or 31 January 2021 given the extension of time was not met, and prima facie the applicant was not employed. The applicant was given full opportunity to respond and did not.

Did the applicant provide a police check in accordance with clause 17?

'17.2. You are required to hold a current Working with Children Check and criminal history record check (police check) and provide evidence of this prior to the commencement of employment.'

[27] According to the applicant a police check was provided by the applicant with the help of 'Sara' a relative and indirectly by a third party, Ms Northcote:

'As discussed, at paragraphs 10 and 11 of Ms Angela Carter's statement, she provides evidence that the Department of Families, Fairness and Housing (the department) had provided each transfer provider a full list of criminal record checks completed and the outcome of these checks. Ms Carter also provides evidence that the list was provided to Melba on 19 October 2020.

Further enquiries have been made by HACSU with the department this afternoon and attached to this letter is an email from Carley Northcote (Director, NDIS Service Delivery) which evidences that Ms Kelly has a clear Police Check dated 19 March 2020 and also confirms that this information was provided to Melba on 19 October 2020. Under Melba policy (see attached), police checks are required to be renewed every three years therefore Ms Kelly held a current Police Check pursuant to this policy. Therefore, Ms Kelly satisfies the requirements of clause 17 of the Contract by holding a current criminal history record check.'

[28] The new information is that according to Ms Northcote, the apparently current police check was provided to the employer.

[29] The March 2020 police check is contained at p.287 of the court book. It does not state that it is 'current'. By email dated 3 May 2021, Ms Northcote states that this police check was provided to Melba on 19 October 2020. At p.304 of the court book is a copy of a Melba document entitled 'Important things to know when reviewing your Letter of Offer'. At p.2 of that document, p.305 of the court book, the Melba document states:

All Melba staff are required to obtain a criminal history record check (police check) prior to commencement of employment. If you accept your offer of employment with us it will be a condition of employment that you successfully obtain a police check, and renew this check every three years. Melba will pay for your police check.'

[30] The applicant interprets 'every three years' as meaning that a police check provided for another employer is still 'current'. This is not the respondent's view. The reference to three years seems to relate to the requirement to 'renew this check every three years', not that a police check of less than three years old is acceptable for applicants for employment. In relation to such applicants, they are required to 'obtain' a police check 'prior to commencement of employment'.

[31] The applicant claims that she made attempts to provide a police check through 'Sara', her daughter in law, because she was not proficient in relation to emails and the computer:

'24. At 11:30am on 21 October 2020 I met Nellie at the Melba office. Nobody else was present as Nellie had specifically attended the office for me to sign the letter and provide the ID. At the time of this visit the office was closed due to COVID-19 restrictions.

25. I took in all four points of ID and Nellie photocopied them and returned them to me. I gave Nellie a copy of my valid Working with Children Check (WWCC), which Nellie copied and returned to me. I also signed a copy of the Letter of Offer during this visit.

26. Whilst at the office, Nellie informed me that I needed to complete a link that had been emailed to me to finalise the police check. I told Nellie that I would ask my daughter-in-law, Sara Kelly, to help me to finalise this step. I do not recall why Ms Botrell could not assist me to complete the final steps of the check.

27. I do not recall specifically what the email link was, but I believe Ms Botrell gave me all that I needed to complete the check. 241

28. After I left the office at around 12:30pm I called Sara as I knew she was home. I asked her if I could come over to her house as I needed her help with some paperwork on the computer. She said yes and that she would help me.

29. I went home to collect the tablet, and I arrived at Sara's in the mid-afternoon.

30. I told Sara that I needed to transfer my police check to Melba. I showed her the email containing the web link and gave her the required information.

31. Five minutes later, Sara told me she was all done. It was my understanding that Sara had done everything she needed to technology wise. She told me "I have done what they have asked me to".

32. I did not confirm with Nellie that I had completed the police check, as I believed that Melba would receive a copy of the police check. I held this belief because the email link stated that a copy would be sent to my employer.

33. I was at no stage informed that I needed to confirm with Melba or send a copy of the police check to Melba.'[7]

'7. In the 3 May 2021 Letter, the Applicant asserts that, despite the express terms of the Contract, she was not required to provide an up-to-date police check as she had completed a police check in March 2020. There is nothing contained in the Contract (or the correspondence between the parties) which indicates that the Respondent would accept the March 2020 police check as compliance with the Contract terms.

8. Objectively, the documentary evidence confirms that the Respondent required the Applicant to provide a current or new police check after the Contract was signed, but prior to the Applicant commencing employment.

9. If the Respondent did not require the Applicant to complete a new police check, then there would have been no need to include a term in the Contract about it, nor would have the Respondent have subsequently contacted the Applicant about her failure to complete the current police check in accordance with the Contract.'[8]

[33] Prima facie it seems to me to open to the employer to specify the nature of the police check they require, and there seems nothing unreasonable with its approach to the issue. It is not for an applicant for employment to specify the type of police check requirement the employer places on a job, because the applicant does not stand in the shoes of the employer. Nor is it necessarily a matter for the NDIS, although its requirements would be a minimum and influential. The attempt to sustain an argument that the employer is bound by a document to accept a police check completed in the last three years is a misreading of the document, which is fully compatible with the employer offer condition that 'you successfully obtain a police check'.

[34] Further, the applicant herself appears to have attempted to arrange for a new police check (see paragraph 26 of her witness statement above) and therefore did not believe that an old police check from March 2020 was sufficient, which appears to contradict the applicant submissions that an old police check is sufficient and favours the employer view of the issue. It suggests that both the applicant and employer believe that a new police check was required. Overall the applicant did not provide a new police check as required.

[35] In any event this is the sort of issue which should have been discussed between the applicant and respondent, and was not, because the applicant did not respond by drawing the attention of the respondent to the police check provided and its nature if she believed it was sufficient. The issue should have been discussed, which is surely one legitimate reason for the letters sent by the employer and oddly not responded to by the applicant.

Is compliance with clause 17 a condition precedent to the formation of an employment relationship and/or employment contract?

[36] As noted above the employer offered the applicant employment in a letter of 29 September 2020. The offer and commencement of employment was expressed as conditional only:

'This Letter of Offer sets out the terms and conditions of Melba's offer of employment to you. This offer lapses 28 days after the date of this Letter of Offer.

Your employment commences on 1 January 2021 provided that:

1.1. you accept employment with Melba as set out in this Letter of Offer by signing this Letter of Offer and returning it to [email address] within 28 days of the date of this Letter of Offer;

1.2. prior to 1 January 2021, you have satisfactorily passed any safety screening specified at clause 17 (Safety Screening);

1.3. as at 1 January 2021, you continue to meet the requirements listed in clause 18 (Inherent Requirements); and

1.4. between the date of this Letter of Offer and 31 December 2020 (i.e. immediately prior to the commencement date in clause 1), you are in continuous employment with the Department in a position seconded to Melba; i.e. during that period, your employment with the Department is not terminated.'

[37] One of the conditions was that the applicant has 'satisfactorily passed any safety screening specified at clause 17'.

[38] The applicant submits that a contract was formed even if clause 17 was not complied with:

'55. In Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 551 Mason J held:

"There is an obvious difference between the condition which is precedent to the formation or existence of a contract and the condition which is precedent to the obligation of a party to perform his part of the contract and is subsequent in the sense that it entitles the party to terminate the contract on non-fulfilment.

In the first category the transaction creates no rights enforceable by the parties unless and until the condition is fulfilled. In the second category there is a binding contract which creates rights capable of enforcement, though the obligation of a party, or perhaps of both parties, to perform depends on fulfilment of the condition and non-fulfilment entitles him to terminate."

56. The categorisation of each such term is a matter of construction in each case. Notwithstanding this, Mason J observed: In most cases it is artificial to say, in the face of the details settled upon by the parties, that there is no binding contract unless the event in question happens. Instead, it is appropriate in conformity with the mutual intention of the parties to say that there is a binding contract which makes the stipulated event a condition precedent to the duty of one party, or perhaps of both parties, to perform. Furthermore, it gives the courts greater scope in determining and adjusting the rights of the parties. For these reasons the condition will not be construed as a condition precedent to the formation of a contract unless the contract read as a whole plainly compels this conclusion.

57. In this case, the clause itself does not even so imply. The clause expressly imposes an obligation on the Applicant to provide evidence of a successful police check. Plainly, such an obligation could only be imposed after the formation of the contract.

58. Further, nothing lends to the conclusion that the requirement to obtain a police check constitutes a condition precedent to the formation of the Contract, much less "plainly compels" that conclusion.

59. The Contract provides that it is necessary to obtain and provide evidence of a successful police clearance. In Re John Patrick Kennedy v the Australasian Coal and Shale Employees Federation and Elcom Collieries Pty Ltd [1983] FCA 354 the Federal Court of Australia considered an offer of employment conditioned in the following terms: It is necessary for you to receive a clearance from Mr. K. Fogg, Secretary of the Northern District Miners' Federation (i.e. the first respondent) before you may commence employment at this mine.

60. Noting the distinction between conditions precedent to performance and formation, Beaumont J held: In the first instance, it is necessary to construe the early correspondence written by the second respondent to the applicant. Both letters (i.e. of 23 November, 1982 and 24 January, 1983) speak of a need to obtain a "clearance" from the first respondent before he commenced employment. In my opinion, this provision was a condition precedent but it was a condition precedent not to the formation of the contract but to the obligation to complete it.

61. Clause 17.2 of the contract imposes an obligation upon the Applicant to provide certain information. It does not condition her employment thereon.'[9]

[39] The respondent disagrees, submitting that:

'25. In respect of the Applicant, the offer of employment made by the Respondent confirmed that the Applicant's employment would commence on 1 January 2021, however, was conditional on:

(a) the Applicant accepting the Letter of Offer and returning a signed copy to the Respondent within 28 days;

(b) the Applicant satisfactorily passing all safety screening requirements prior to 1 January 2021 (including criminal history checks, Disability Worker Exclusion Scheme checks, Working with Children checks and any other safety screen check mandated by the Respondent);

(c) the Applicant meeting the inherent requirements listed in the Letter of Offer as at 1 January 2021; and

(d) the Applicant remaining continuously employed by the Department of Health and Human Services until 31 December 2020.

30. An employment relationship between the Applicant and Respondent did not exist (i.e., the Applicant was never an employee) at the time the Contract was terminated because: (a) the Applicant did not comply with all conditions precedent to the Contract; and (b) the Applicant never performed any work or shifts under the Contract, nor did she receive payment from the Respondent for any work performed under the Contract.

31. It was the Contract (as opposed to employment relationship) which terminated on 10 February 2021 in accordance with the terms of the Contract. In particular, the Contract terminated due to the outstanding requirement of a police check not being completed by the Applicant.

32. The requirements of the Contract were clear and unambiguous with respect to what the Applicant was required to do before her employment with the Respondent commenced. The Applicant also received the 27 January 2021 letter, putting her on notice that failure to complete the police check would mean that her employment 5would not commence, and the Contract would be terminated.'[10]

[40] In its supplementary submissions, the Respondent submits:

'19. The Applicant did not cooperate or comply with the preconditions of the Contract and failed to take any steps to cooperate or respond to the Respondent's repeated requests to complete a current police check.

20. The Respondent took all reasonable steps to make it clear to the Applicant that she had not met the preconditions of the Contract in order for her employment to commence by:

(a) Writing to the Applicant on 16 December 2020 to advise that the safety screening requirements were incomplete;

(b) Writing to the Applicant on 30 December 2020 regarding the outstanding police check; and

(c) Writing to the Applicant on 27 January 2021, again confirming that the Applicant had not met the preconditions of the Contract.

21. In response to the Applicant's alleged difficulties with technology, the Respondent confirms that the correspondence to the Applicant listed in (a) to (c) above was sent by a variety of methods, including by SMS, email, and registered post.

22. The Respondent confirms they have received emails from the Applicant, including most recently on 29 January 2021, demonstrating she was able to compose and send emails (yet she still chose not to respond to the police check requests). In any case, as referred to at [18] above, the Applicant confirms she received the Respondent's letter dated 16 December 2020.

23. The Applicant also says that she believed the Respondent's letter of 30 December 2020 was a 'standard letter that had gone out to all transferring Melba employees' and she did not need to respond to it. The 30 December 2020 was addressed specifically to the Applicant and referred to the prior correspondence sent to her.

24. Additionally, both letters to the Applicant on 16 and 30 December 2020 required to the Applicant to provide evidence of the completed police check and to contact the Respondent immediately (even if she had completed the required action, because there was no evidence of her doing so).

25. The Applicant's evidence totally fails to deal with the fact that the Respondent continually requested her complete the required police check and to contact them immediately about the matter, nor does it sufficiently explain why she did not respond to any of the letters.

26. The Applicant chose not to respond to the Respondent, indicating she had no intention to commence work or comply with the requirements of the Contract in order for an employment relationship to commence.

27. The Applicant failed to complete the preconditions of the Contract in order for her employment to commence and did not cooperate with the Respondent in accordance with clause 17.1 of the Contract.'[11]

[41] The offer is in different terms to the contracts and circumstances in the decisions referred to by the applicant. Those decisions are not authority for the proposition that conditions cannot be placed on a letter of offer before an employment contract or a relationship commences. Such a proposition is unsustainable and inequitable, in that in practice it can allow and give scope for inappropriate and unhelpful behaviour by an applicant for employment, although I accept that some latitude can be given. It is not the case on those authorities that all such letters of offers with conditions are unconditional letters of offer which take effect regardless of the stated conditions or are a condition precedent not to the formation of the contract but to the obligation to complete it. The terms of the offer have to be considered in each case. For example[ ]Re John Patrick Kennedy v the Australasian Coal and Shale Employees Federation and Elcom Collieries Pty Ltd1212 [1983] FCA 354; (1983) 74 FLR; 241 (21 December 1983) was an unusual matter relating to the then s.144 of the Act, and an application for a declaration that an employee was entitled to be a member of a registered organisation:

'The applicant's primary claim is founded upon the provisions of s.144 of the Act which, so far as material, are:

"(1) A person engaged in an industry . . . is, unless he is of general bad character, entitled, subject to payment of any amount properly payable in respect of membership, to be admitted as a member of an organization (being an organization of employees in or in connexion with that industry...'

[42] The letter of offer created a duty on the second respondent (the employer) to do all that was reasonable to procure the person seeking employment membership of the first respondent (the trade union), given the close working relationship between the employer and union:

"...in its letter to the applicant's solicitor dated 1 June, 1983, written after the commencement of these proceedings, the second respondent not only confirmed its desire to employ the applicant but also expressed its support on his behalf in his dealings with the first respondent. In so doing, the second respondent was, no doubt, acting in accordance with the implied obligation imported into the contract between it and the applicant that each would do all that was reasonable on its or his part to procure, if possible, the "clearance" of the applicant by the first respondent (see Perri v. Coolangatta Investments Pty. Ltd., supra)."[13]

[43] This present matter is of a different nature. It does not concern s.144 or its equivalent, and does not involve an employer helping a prospective employee obtain membership of another party, a trade union, with all the custom and practice and law involved. It does not concern compulsory or de facto encouraged union membership in the coal industry, or anything similar, or a close working relationship between an employer and trade union leading in the circumstances to an implied term of a contract. It is a matter of a police check, and simple cooperation with the employer by responding to legitimate employer letters. In this case there is no such contractual duty on the employer to secure the applicant a police check, rather the terms of the contract make it clear that it is for the applicant to obtain such a police check and to 'cooperate' with the employer:

'This Letter of Offer sets out the terms and conditions of Melba's offer of employment to you. This offer lapses 28 days after the date of this Letter of Offer.

Your employment commences on 1 January 2021 provided that:

1.1 . you accept employment with Melba as set out in this Letter of Offer by signing this Letter of Offer and returning it to [email address] within 28 days of the date of this Letter of Offer;

1.2. prior to 1 January 2021, you have satisfactorily passed any safety screening specified at clause 17 (Safety Screening);

17.1. You must co-operate with Melba so as to enable us to perform criminal history record checks, Disability Work Exclusion Scheme checks, Working with Children checks and any other safety screening check mandated by Melba from time to time.'

17.2. You are required to hold a current Working with Children Check and criminal history record check (police check) and provide evidence of this prior to the commencement of employment.' [emphasis added]

[44] These are obligations on the applicant not on the employer, although there are in part some obligations on the employer as well. One would expect an applicant for employment to cooperate with such legitimate requests.

[45] In any event a Full Bench of the Commission said in Mohazab v Dick Smith Electronics Pty Ltd (No 2) said that termination at the initiative of the employer arises where:

• the employer's action 'directly and consequentially' results in the termination of employment, and

• had the employer not taken this action, the employee would have remained employed.[14]

[46] As stated by the Full Bench:

"The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract."[15]

[47] Section 386(1)(a) of the Act requires the person's "employment with his or her employer [to have] been terminated on the employer's initiative". References to "employment" and "employer" in s.386(1)(a) require an employment relationship to have existed at the time of dismissal. In this case there is no question that employment commenced, or that services were provided by the applicant or similar, and that wages were received in return. The wage/work bargain had not commenced.

[48] Macken's Law of Employment[16] (Macken's) says that for a contract to be in existence, the following requirements must be met:

'(1) There must be an "intention" between the parties to create a legal relationship, the terms of which are enforceable.

(2) There must be an offer by one party and its acceptance by the other.

(3) The contract must be supported by valuable consideration.

(4) The parties must be legally capable of making a contract.

(6) The contract must not be rendered ineffective by reason of conduct which is illegal or contrary to public policy.'

[49] Macken's also says in relation to conditional offers:

'The second essential element of a contract is that the agreement should be made by way of an offer made by one party and accepted by the other party.

An offer may impose conditions upon its acceptance and such conditions have to be met by an acceptor unless they are subsequently waived by the offeror. Naturally an offer as a matter of contract law may lapse or be withdrawn at any time before it is accepted.

Before an offer can be accepted it must be couched in sufficiently definite terms for it to be capable of acceptance. An offer may be conditional such as subject to passing a medical or other assessment or examination.

Acceptance of an offer must be unqualified and must correspond with all the terms of the offer. If the offer is conditional, those conditions must be satisfied before there is acceptance. So "if the acceptance is not clear and certain, but leaves something to be arranged, something for future discussion and decision, the parties are not ad idem.

A prospective employer may seek to withdraw an offer of employment before acceptance. As a matter of strict contract law no contract of employment can come into existence until the offer is accepted.'[17] [citations omitted]

[50] In this case the offer provided that the employment would not commence until 1 January 2021 unless certain conditions were satisfied. The terms of the offer are clear on this. Nor is there anything in what happened which displaces that. No payment was received and no services performed by the applicant. There was no employment or contract until the conditions were met, and even then not until 1 January 2021 or 31 January 2021, the extension time. The conditions were not met so the offer lapsed and employment never commenced. I accept that Melba described its letter as a 'termination of employment' letter.[18] However, the letter of offer of 29 September 2020 makes it clear that as discussed earlier the commencement of employment is subject to conditions.[19] The follow up letter of 16 December 2020[20] provides that 'a condition of your employment commencing with Melba (Letter of Offer clause 1.2) is that you complete a police check'. The language used is imprecise as can be expected from time to time, particularly where staff are not legally trained and are simply trying to do their job in rather trying circumstances where an applicant is not cooperating. The substance of the negotiations are as I have described, and a failure of the employer and possibly not legally qualified staff to understand and use correct technical language should not be held against it.

[51] On the evidence before me, the offer of employment was withdrawn due to the preconditions contained within the offer not being met. While an offer had been made of future employment, acceptance was not fulfilled as the pre-employment requirements were not met in accordance with the terms contained within the offer, as I discuss above. It follows that I must find that Ms Kelly was not an employee of Melba when it withdrew its offer of employment, and she was not dismissed.

[52] The applicant was not employed. There was therefore not a termination of employment within s.386 of the Act. I dismiss the application. An order is contained in PR730477.

A. Dickenson, G. Adams, A. Zahra, and P. Faulkner of the Health Services Union with permission, with S. Kelly the Applicant.

J. Lynch, of Edge Legal with permission, with R. Evans on behalf of the Respondent.

1.1 Section 386(1)(a) of the Act provides that a person has been dismissed, where the person's employment has been terminated on the employer's initiative.

1.2 The Full Bench has determined that there is a requirement for "there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end".[21] A contract that terminates by the operation of law will not be considered a termination on the initiative of the employer.[22] As contractual relationships are distinct from employment arrangements, it is necessary to analyse whether there has been a termination of the employment relationship.[23]

1.3 The offer of employment made by the Respondent confirmed that the Applicant's employment would commence on 1 January 2021, but was also conditional on the applicant accepting the Letter of Offer and returning a signed copy, satisfactorily passing all safety screening requirements prior to 1 January 2021, meeting the inherent requirements listed in the Letter of Offer, and remaining continuously employed by the Department of Health and Human Services until 31 December 2020. These were a condition precedent and had to be completed before an employment relationship could commence.

1.4 The Applicant was only paid the entitlements accrued whilst she was an employee of the Department and she did not accrue, nor was she paid for any entitlements accrued under the Contract. The Respondent paid the entitlements accrued at the Department due to administrative ease.

1.5 The Respondent paid the Applicant a notice period of 5 weeks merely out of an abundance of caution upon termination of the Contract.

1.6 An employment relationship between the Applicant and Respondent did not exist at the time the Contract was terminated because the Applicant did not comply with all conditions precedent to the Contract, the Applicant never performed any work or shifts under the Contract, nor did she receive payment from the Respondent for any work performed under the Contract. It was the Contract (as opposed to employment relationship) which terminated and it did so due to the outstanding requirement of a police check not being completed by the Applicant. the Applicant could not have been dismissed as she was never an employee of the Respondent and had not completed the mandatory requirements for an employment relationship to commence.

2.1 Whether there has been a termination at the initiative of the employer requires an analysis of whether the employment relationship has ended.

2.2 The Respondent communicated to the Applicant an offer of employment on 29 September 2020 and the Contract stated that the Applicant's employment would commence on 1 January 2021 provided that a signed copy was returned, all safety screening requirements prior to 1 January 2021 were met, the inherent requirements listed in the Letter of Offer were met, and remaining continuously employed by the Department of Health and Human Services until 31 December 2020.

2.3 A proper interpretation of clause 17.1 merely establishes a right for the Respondent to perform safety screening checks as required from time to time and requires the employee to co-operate. The phrase "time to time" does not define that time to be prior to the commencement of employment.

2.4 The Applicant submits that she satisfied the requirements of clause 17.2 prior to the commencement of employment. The Applicant held and supplied a copy of a current Working with Children check on 21 October 2020 and the Applicant completed the police check on 4 March 2020 pursuant to a direction from DHHS to prepare for the transfer of its services to the Respondent.

2.5 The meaning of a contract of employment is determined by what a reasonable person would understand the terms of the document to mean.[24] This requires consideration of not only the text, but also of the surrounding circumstances. According to the NDIS Quality and Safeguards Commission, the Applicant is not required to obtain a further police check until at least 31 July 2021 on condition that they hold a valid police check and DWES Check. The Applicant has a valid police check and DWES Check. Further, if the Applicant has a Working With Children's

Check (WWCC), the Applicant is not required to get a further police check until the WWCC expires.

2.6 Consideration of other surrounding circumstances includes an analysis of clause 11.15 of the Agreement. The Applicant received the Contract, accepted the terms of the Contract by

signing it on 21 October 2021 and returned the Contract to the Respondent on this date establishing an employment relationship. This position is consistent with the conduct of the Respondent and its performance of its obligations under the Contract where leave entitlements were transferred to the Respondent from DHHS and steps taken to discharge the Applicant's leave and notice entitlements upon termination of the employment.

2.7 the Applicant was ready and willing to perform her obligations under the Contract pending the resolution of the dispute about lack of consultation. The Applicant was simply adhering to the Respondent's direction to remain on unpaid leave in the meantime.

2.8 Where a contract includes words of condition, it is necessary to determine whether what is being conditioned is the formation of the contract itself, or some obligation imposed by the contract. The clause expressly imposes an obligation on the Applicant to provide evidence of a successful police check, such an obligation could only be imposed after the contract was formed. The contract provides that it is necessary to obtain and provide evidence of a successful police clearance. Clause 17.2 imposes an obligation upon the Applicant to provide certain information. It does not condition her employment thereon.

2.9 The Full Bench determined that the appropriate test is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether the dismissal of the employment was the probable result of the employer's conduct.[25] the Respondent unilaterally decided that the Applicant's employment would cease on 1 February 2021 and that the Respondent gave the Applicant notice of this termination verbally in a video conference on 10 February 2021 and via the letter of termination dated 10 February 2021. The Applicant did at no stage indicate any voluntariness to leave the employment Relationship and the Respondent provided notice and accrued leave entitlements, consistent with its obligations under the FW Act.

2.10 These actions constitute termination at the initiative of the Employer and thereby satisfies the first limb of s. 386(1)(a) of the FW Act.

[1] Appendix 1 - Summary of Submissions.

[2] Audio Recording of Mention, 3 May 2021, 00:11:02; 00:20:24.

[7] Digital Court Book, 241-2, Witness Statement of Susanne Kelly.

[8] Digital Court Book, 311, Respondent's Supplementary Outline of Argument, filed 5 May 2021.

[9] Digital Court Book, 39-40, Applicant's Outline of Submissions, filed 29 April 2021.

[10] Digital Court Book, 4-6, Respondent's Outline of Submissions, filed 8 April 2021.

[11] Digital Court Book, 312-4, Respondent's Supplementary Submissions, filed 5 May 2021.[ ]

[14] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625; (1995) 62 IR 200.

[15] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162, [75].

[16] Carolyn Sappideen, Macken's Law of Employment (Thomson Reuters, 8th ed, 2016), 100 [4.40].

[17] Ibid, 102 [4.60], 103 [4.70], 105 [4.100], 106 [4.120].

[21] P O'Meara v Stanley Works Pty Ltd [2006] AIRC 496.

[22] Taylor v Metro Velda Pty Ltd [2001] AIRC 966.

[23] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162, [75].

[24] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, 176.

[25] O'Meara v Stanley Works Pty Ltd [2006] AIRC 496, [23].

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