When hiring new employees, there are often a number of pre-employment processes and requirements to be completed before an employee actually commences work. A question that often arises is – what happens if those pre-employment checks are not completed satisfactorily or at all?
Employers must take care when a decision is made to cease the employment of a new hire because of concerns that have arisen during a pre-employment check or onboarding process. Depending on the particular circumstances, this may count as a dismissal and expose an employer to claims under the Fair Work Act 2009 (Cth) (the FW Act), such as unfair dismissal.
A key consideration for the Fair Work Commission (FWC) in these cases is whether or not an actual employment “relationship” existed from which an employee could be dismissed, as distinct from there being an employment “contract”. While these two concepts are related, they are quite distinct for the purposes of dismissal-related disputes under the FW Act.
The FWC was required to clarify this distinction in a recent unfair dismissal decision (Dembowska v Abergeldie Personnel Pty Ltd [2026] FWC 801). The Respondent in this matter raised a jurisdictional objection to the claim, on the basis that an employment relationship had not yet commenced and therefore it could not have “dismissed” the Applicant from employment.
The FWC heard that the Applicant had accepted an offer of employment from the Respondent in the position of Commercial Manager.
The letter of offer, signed by the Applicant on 3 September 2025, confirmed that the Applicant would commence employment on 7 October 2025. It also confirmed that a more detailed agreement would be sent upon acceptance of the offer.
After accepting the offer, the Applicant received an email from the Respondent requiring her to provide documents and complete mandatory induction modules.
An employment agreement was then sent to the Applicant and this was signed on 16 September 2025. The same day, the Applicant resigned from her previous employer and indicated her last day of work would be on 3 October 2025.
By 23 September 2025, the Respondent’s onboarding team raised concerns that the Applicant had not completed certain pre-employment requirements, including providing confirmation of her working rights and credentials.
By 29 September 2025, the Applicant had provided some but not all of her required working rights and credentials (in particular a construction induction card) and also had not commenced or completed online inductions.
At this point, the Respondent developed concerns that the Applicant was not suitable for the position based on a re-assessment of business needs. Further, the Applicant had not met the pre-employment requirements. As a result, the Applicant was notified that the offer of employment had been withdrawn.
Before the FWC, the Applicant argued that she had been “dismissed” by the Respondent and was therefore entitled to make a claim of unfair dismissal.
According to the Applicant, a binding agreement was formed on 3 September 2025 and this was supported by the Respondent’s email to her on 4 September 2025. She stated that any delays in the pre-commencement process did not have the effect of vitiating the agreement – the only effect was that it would delay the commencement of work.
Ultimately, the FWC disagreed with the Applicant. It accepted that the parties had entered into a binding employment agreement on 3 September 2025. However, there was no employment relationship between the parties at any time, including as at 29 September 2025 when the Respondent withdrew its offer of employment.
In coming to this view, it noted:
Therefore, the Respondent did not “dismiss” the Applicant at its initiative (as required by the FW Act) and the Applicant’s claim of unfair dismissal was dismissed.
As a matter of best practice, employers should ensure that all pre-employment checks are completed prior to a candidate commencing employment. This approach will minimise the risk of a dismissal-related dispute in the event that any issues or concerns come out of those pre-employment processes.
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