A recent decision of the Fair Work Commission (FWC) reinforces that an accepted offer of employment does not always create an immediate employment relationship. In Donohue v Safe Hands Group Pty Ltd [2025] FWC 3451, Commissioner McKinnon found that despite the applicant accepting an offer of employment, the parties had not yet entered into an employment relationship. As a result, the applicant could not pursue a general protections dismissal claim under section 365 of the Fair Work Act 2009 (Cth).
The Background
The applicant accepted an offer to work for the employer on a fly-in fly-out (FIFO) assignment in Nauru. However, delays outside the employer’s control pushed back the deployment date. The applicant became increasingly frustrated with these delays, and the employer ultimately withdrew the offer.
The applicant then filed a general protections dismissal dispute. To pursue such a claim, he first needed to establish that he was an employee when the offer was withdrawn.
The employer argued — and the FWC agreed — that no employment relationship had commenced.
Why the FWC Found There Was No Employment Relationship
Commissioner McKinnon examined whether the offer, once accepted, gave rise to an immediately binding employment relationship. The key findings included:
Some terms indicated an intention to form a binding contract — but at a future time
The offer included several provisions that could, in theory, operate immediately, such as:
- a proposed 12-month term of full-time employment
- compliance requirements regarding company policies and relevant laws
- provisions relating to variation and termination
These showed an intention that the parties would become legally bound at some point — but not necessarily at the moment of acceptance.
Critical terms showed employment could only commence once the employee was in Nauru
Several fundamental elements of the role could not take effect until the applicant physically arrived in Nauru, including:
- the duties were to be performed only on-site
- induction was to occur upon arrival
- salary was to be paid into a Nauru bank account
- further role information would be provided at the on-site induction
These conditions made clear that employment could not begin until deployment occurred.
Key terms were incomplete or uncertain
The FWC identified several essential matters that remained unresolved, including:
- no start date
- indications that a formal employment contract was still to follow
- multiple conditions precedent, such as:
- pre-employment checks
- a valid passport
- a first aid certificate
- a visa permitting work in Nauru
The absence of these critical details meant the offer lacked the certainty required for an immediate employment relationship to form.
Taken as a whole, the offer did not create an employment relationship
After considering all terms together, Commissioner McKinnon concluded that the parties had not yet finalised the terms necessary to establish an employment relationship. As the applicant was not an employee at the time of the withdrawal of the offer, he could not have been dismissed.
The application was therefore dismissed.
Key Lessons for Employers
This decision highlights important considerations when issuing employment offers, particularly for overseas, FIFO or conditional roles.
1. An accepted offer does not always mean employment has commenced
If key terms such as start date, conditions precedent, or work location remain unresolved, there may be no employment relationship yet.
2. Be clear about conditions precedent
Medical checks, visas, certifications, security clearances and other requirements should be explicitly documented as prerequisites to employment commencing.
3. Avoid ambiguity about when employment begins
If employment will only start upon deployment, arrival on site, or completion of checks, this should be stated plainly.
4. Consider using conditional or provisional offers
For roles requiring extensive pre-employment requirements, conditional offers can help limit risk if circumstances change before employment begins.
