Ebrahim Mustansir Kheriwala v Hi-Reach Rentals (Australia) Pty Ltd
[2024] FWC 1153
•3 MAY 2024
| [2024] FWC 1153 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ebrahim Mustansir Kheriwala
v
Hi-Reach Rentals (Australia) Pty Ltd
(C2023/6495)
| COMMISSIONER HUNT | BRISBANE, 3 MAY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – was there an employment relationship such that there could be a dismissal.
On 20 October 2023, Mr Ebrahim Mustansir Kheriwala made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Mr Kheriwala claimed to have been dismissed by Hi-Reach Rentals (Australia) Pty Ltd (the Respondent) by the Respondent revoking its offer of employment on 16 October 2023.
In its Form F8A – Response to general protections application, the Respondent raised the jurisdictional objection to the application on the grounds that Mr Kheriwala was not terminated on the employer’s initiative pursuant to s.386(1) of the Act as he was not ever an employee of the Respondent.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford, the Commission must determine whether Mr Kheriwala was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Mr Kheriwala was dismissed in contravention of the general protections provision.
Legislative provisions
Section 365 of the Act provides as follows:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
The meaning of “dismissed” is provided at s.386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
This decision deals only with the jurisdictional objection to be determined, that is, was Mr Kheriwala dismissed from employment?
Hearing
The matter was listed for hearing in Brisbane on 12 January 2024. Mr Kheriwala represented himself. Mr Colin Fox, Managing Director and Ms Donna Smith-Hill, Administration Manager appeared for the Respondent.
Evidence of Mr Kheriwala
On 12 October 2023, Mr Kheriwala attended an in-person interview with Ms Smith-Hill for the Accounts Receivable position the Respondent had advertised. During the interview he was asked about his dream job. He replied that he does not have a dream job, rather a dream organisation. He was looking for an inclusive organisation; one that does not discriminate and one that respects its employees. He informed Ms Smith-Hill that he was looking for a long-term opportunity.
Mr Kheriwala was asked about his salary expectations, to which he replied $70,000 plus superannuation. Ms Smith-Hill informed him of the start and finish times of the role. Mr Kheriwala asked if the role was for 38 hours per week, to which Mr Smith-Hill replied it was a 40 hour per week role. Mr Kheriwala responded that he had worked 38 hours in most of his previous roles and if it was a 40 hour per week role, his salary expectations would be $75,000 plus superannuation.
During the interview, Mr Kheriwala explained he had been discriminated against in past roles. He considered that he had raised various concerns with his managers and was forced to perform tasks outside of his accounting job profile, leading to an unnecessary excessive workload and ultimately his resignation.
Mr Kheriwala also shared with Ms Smith-Hill experiences from his previous role during the interview where he was subjected to bullying by colleagues. This bullying was based on his ethnicity, religion, and the pronunciation of his name. He emphasised that he has zero tolerance for any form of bullying.
At the end of the interview, Ms Smith-Hill informed him that she would contact him the next week with her decision.
Unexpectedly, the next day, on 13 October 2023, Mr Kheriwala received a call from Ms Smith-Hill offering him the position. Mr Kheriwala was not anticipating this call until the following week. The call lasted for 6 minutes and 5 seconds based on the recording by Mr Kheriwala. The full recording of the call has been provided as part of his statement. Only Mr Kheriwala can be heard in the recording.
Mr Kheriwala provided only a select transcript of the recording, removing the remarks he made about feeling threatened by Ms Smith-Hill when she called him, however I have included the best transcript available. Mr Kheriwala did not inform Ms Smith-Hill that he was recording the following conversation:
Mr Kheriwala:Yes, may I ask who’s calling?
I’m good, how are you?
Any plans for the weekend?
Oh, sorry, straight to the business.
OK straight to the business, OK.
OK.
I feel I am I’m threatened by you. I’m threatened by you. I’m scared of you.
Your voice is cutting…. I need to go out of my room actually I’m not able to hear you clearly.
Two seconds
No, I’m outside now.
Takes two seconds for me to get out, I live at the basement. It’s just me walking out
Yeh, OK, I can hear now. Thank you.
Ms Smith-Hill: How did you feel about the interview yesterday? Would you be interested in accepting the role with a start date of 23/10?
Mr Kheriwala: Yes, I would be. Not a problem with me. I, look as long as I said I would prefer a company work culture which is inclusive, as long as the people are respectful to each other, I do not have an issue with anything that’s how I am, as long as you can, if you’re ok with my basic requirement, that as I said I do not have a dream job I have a dream company. If you OK with my very basic requirement that I get respect for who I am, no racism, no discrimination, nothing I’m not into that. I don’t discriminate, I don’t believe in any kind of racism so as long as your company values align with that, I’m happy to come on board and I’ll take
your word for it.
Ms Smith-Hill: ……………….
Mr Kheriwala: 40 hours a week, yep, not a problem.
Ms Smith-Hill:So that start date would be the 23/10.
Mr Kheriwala: What is today? 16? Am I right? Oh, 13 sorry. 10 days. 10 days’ time. OK fair enough, not a problem. I’m OK with that, yes. If that could be earlier than that it would be great. It should be fine.
Ms Smith-Hill: …………….
Mr Kheriwala: Ok, sure, not a problem.
OK, awesome.
[Ms Smith-Hill spoke for several minutes before the parties said goodbye].
Mr Kheriwala submitted that the recording clarified that he accepted the offer and was willing to start as soon as possible.
Following this conversation, Ms Smith-Hill sent an email on 13 October 2023 detailing the onboarding information, copying Mr Fox and Ms Bonnie Powell:
“Welcome to the Hi-Reach team.
As per your discussions with myself you will be starting with Hi-Reach as per below:
Start Date: 23/10/2023 Start Time: 8:30 am Position: Accounts Receivable & Administration Status: Full-Time – Perm Department: Accounts | Admin Branch: Brisbane
Upon arrival please ask for myself who will be your Supervisor and introduce you to your team.
Attire is neat and presentable with closed in shoes.
We have started the onboarding process within our HR & payroll system. For this to be finalised and your files set up correctly I ask that you attend to the emails forwarded to you from Employment Hero. Please read the emails from Employment hero and ensure you follow the instructions. This will take you to the web portal (intranet) once you have signed in (use your personal email account) and password (created at time of sign-in) please complete all of your personal information. You must ensure you answer all questions accordingly.
All the below must be completed prior to starting with Hi-Reach. If at any stage during the process you have any questions please don’t hesitate to contact me for clarification.
The following are the steps that you’re required to complete:
1. Answer all questions relating to your onboarding process,
2. You will need to read all documents contained within your policy area under Files and acknowledge each one. If you have any questions in relation to any of the policies please contact me for clarification,
3. You have been provided with a copy of the fair work statement which we are required to provide to all new employees. This can be located under your induction area along with any other information you are required to have under your position as a reference
4. Both your policies and induction content can be located under Files on the web portal – refer to below screen shot
5. When you get to the superannuation section please selected the regulated super fund if your super fund is none of those showing
1. Once you have completed all of the above you can then proceed to the app store or google play and download the app for employment hero which is called SWAG. This will make it easier for you to load all required certificates required as a prestart requisite. You can take photos of your certificates and or cards and upload under the various certificate area. Some of the certificates will not be compulsory for your start however the following will be required for you to commence work with Hi-Reach such as
a. Medical Disclosure Form (attached is the form for you to complete and upload)
b. Drivers Licence
Once you have completed all of the above areas I will receive notification from employment hero at which point I will double check everything on our end.
Again, if at any stage you need assistance please don’t hesitate to contact me for clarification. I will speak to the relevant person/s in relation to you undertaking the following but not limited to:
· Manual Handling,
· Bullying and Harassment,
· Fire Extinguisher Training,
· Chemical & SDS Register
Should you have any question in relation to the above and or attached please don’t hesitate to contact me.
Kind Regards
Donna Smith-Hill”
On 14 October 2023, Mr Kheriwala emailed Ms Smith-Hill, copying in Mr Fox and Ms Powell. Mr Kheriwala explained to the Commission that he assumed Mr Fox was the incumbent in the role, and Ms Powell another accounts team member. He sent the following email:
“Hi Donna,
I am very excited about the opportunity to contribute to your team and believe that my skills and experiences align well with the requirements of the role.
In order to make a comprehensive evaluation of this opportunity, I was hoping you could provide some additional information regarding the compensation for this position. Specifically, if the current incumbent is comfortable with disclosing, I would like to understand if the salary offered to me aligns with what the current incumbent is earning. If there is a discrepancy, it would be helpful to know the extent and reason of this difference.
This is in light of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which protects employees’ rights to discuss their pay, I believe this discussion is an important part of evaluating potential job offers.
Thank you for your understanding.
Kind Regards,
Ebrahim Kheriwala”
On 16 October 2023, at 6:33am, he received an email reply from Ms Smith-Hill, copying in Mr Fox, as follows:
“Good morning Ebrahim,
I do not really understand what you are trying to ask Ebrahim? We discussed your salary and you had an employment agreement emailed to you along with a copy of the annualised agreement which covers the maximum hours per fortnight and minimum hours required which is covered in your salary.
We will not be moving on the agreed salary so if this not acceptable then I suggest this position is not for you.”
At 6:56am, Mr Kheriwala responded, asking if now was a good time for him to call Ms Smith-Hill, to which she replied that it was.
The telephone call lasted approximately two minutes. Mr Kheriwala stated that under a ‘recent amendment’, he has the ‘right to enquire about the incumbent’s salary’, and they can disclose it if they feel comfortable doing so. Ms Smith-Hill responded that she would not disclose this information. Mr Kheriwala clarified that it is not the employer’s responsibility to disclose this information, but rather, it is at the discretion of the current employee.
In response, Ms Smith-Hill said it was her decision whether to disclose this information, and that the incumbent did not have the right to do so.
At 7:02am, Ms Smith-Hill sent the following email:
“Hi Ebrahim
Thank you for your time and we advise the offer has now been rescinded and we wish you all the best for the future.”
Submissions of Mr Kheriwala
Mr Kheriwala submitted that whilst he may not have correctly applied the Fork Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, as suggested by the law, his inquiry does in fact align with sections 341(1)(a) and 341(1)(c) of the Act. He submitted that these provisions grant him, as an employee, the workplace right to lodge a complaint or inquiry with an employer without fear of adverse action. He submitted that the Respondent has taken adverse action under s.342(2)(a) and 342(2)(b) by terminating his employment.
Not within his application, but one month later in the material he filed to the Commission, Mr Kheriwala cited discrimination as the primary cause of his dismissal. He submitted that the incumbent was earning a higher salary than what was offered to him, as is implied by the Respondent’s annexure document. This discrepancy, he believed, stems from the ‘fact’ that the incumbent is an Anglo-Australian, while he is a ‘brown-skinned Muslim immigrant’. He suspected that this wage discrimination is due to his skin colour, race and religion. He submitted that when the Respondent realised it could not take unfair advantage of him, it proceeded to terminate his employment. He submitted that the practice of hiring candidates of different race, religion, gender etc, and paying them less is exploitation, leading to societal inequality which is the root cause of many other issues that he sees in today’s world.
Mr Kheriwala stated that he did not initially cite discrimination as a reason for his termination whilst making the application because he lacked any evidence to suggest the incumbent was earning a higher salary than him.
Mr Kheriwala further asserted that the Respondent not providing any material evidence should be seen as a clear indication that it is an organisation that discriminates between its “white and non-white” employees. He submitted that the Respondent did not file any evidence to show that it is an inclusive organisation as was claimed in his interview and over the phone when he accepted the offer.
Regrettably, as is clear from Mr Kheriwala’s incorrect assumption that Mr Fox, the Managing Director was the incumbent in this somewhat middle-position role, Mr Kheriwala has no information before him as to the ethnicity of the incumbent. He assumes, without any knowledge whatsoever that the incumbent is ‘Anglo-Australian’.
Evidence of Ms Smith-Hill
Ms Smith-Hill agreed that she interviewed Mr Kheriwala in-person on 12 October 2023, where Mr Kheriwala advised that he has a dream organisation and is looking for an inclusive organisation that does not discriminate and respects its employees.
Mr Kheriwala advised that his salary expectation would be $70,000 per annum for a 38-hour week. Ms Smith-Hill explained the hours would be 8:30am to 5:00pm, with a half hour lunch break. Mr Kheriwala stated the hours are greater than a 38-hour week, to which Ms Smith-Hill agreed. Mr Kheriwala said he would then need to increase his salary expectation given the increased hours, and she asked him what he felt was a fair and reasonable expectation. He said he would seek $75,000 per annum based upon the start and finish time. Ms Smith-Hill agreed and advised that this was what the position was offering. She also went on to advise the following:
· Additional hours may be required to be worked from time to time to meet operational deadlines;
· The probation period was six months at which point he would qualify for a bonus which are paid twice per year (end of financial year and Christmas time). These bonuses are paid depending upon company profitability, performance, productivity, efficiency and going above and beyond; and
· His salary would cover him for minimum and maximum hours, and should he be required to work additional time over the maximum hours allowed, this would be transferred to time in lieu (as per the Award’s annualised agreements).
Mr Kheriwala agreed this was acceptable.
Ms Smith-Hill asked Mr Kheriwala why he left his previous employment as he was only there for two months. Mr Kheriwala explained in great detail the difficulties he experienced with procedural issues, which others in his area were not experiencing. She asked if he sought assistance from his supervisors, and Mr Kheriwala advised they showed no support or clarification around how to resolve his issues. Mr Kheriwala said this meant he worked a lot of additional hours due to increased workload which led to him leaving as it did not align with his values or dream organisation requirements.
Ms Smith-Hill does not recall any discussions about bullying by his colleagues in his previous roles, however does recall him talking about his frustration with people not being able to pronounce his name correctly. Ms Smith-Hill asked for clarity around the correct pronunciation as she wanted to ensure she was correctly pronouncing his name. Ms Smith-Hill also asked if he had a nick name. Mr Kheriwala did not understand this question and she questioned whether people shorten his name and what was his preference. He explained he liked his name in full.
At the end of the interview, Ms Smith-Hill explained that she would like him to think about what was discussed today and she would ring him the following day to see if he had any further questions that he may have not asked during the interview as this does happen as people get nervous during interviews. Mr Kheriwala said OK. Ms Smith-Hill further advised that she would show him around so he can see the environment and where they would sit should he be offered the position. Mr Kheriwala agreed that would be good. Once they finished their walk around, Ms Smith-Hill thanked him for his time and confirmed she would contact him the following day for feedback and hoped that she would have a decision the following week.
Ms Smith-Hill does not dispute that Mr Kheriwala was offered the position. Ms Smith-Hill’s account of the conversation she had with him on 13 October 2023 is as follows:
Ms Smith-Hill:Hi Ebrahim, is it? This is Donna rom Hi-Reach Rentals. Ebrahim, what I am ringing up about is after yesterday’s interview. How did you feel? Did you feel comfortable?
Mr Kheriwala: I need to go out of my room I am not able to hear you clearly.
Ms Smith-Hill: OK right that could be, do you want to five me a call back?
Mr Kheriwala: OK, no I can hear you now.
Ms Smith-Hill: I can you better now. OK Ebrahim were you comfortable with the interview yesterday?
Mr Kheriwala: Yes, I was.
Ms Smith-Hill: Did you feel you would be comfortable working with me as I would be your supervisor so I just need to make sure you would be comfortable working with me.
Mr Kheriwala: Yes, I would be, it’s not a problem with me.
As long as I said I would prefer company work culture which is inclusive, as long as the people are respectful to each, I do not have an issue with anything that’s how I am, so as long as you can, if you’re ok with my basic requirement, that as I said I do not have a dream job I have a dream company if you are ok with my very basic requirement that I get respect for who I am, no racism no discrimination nothing I’m not into that I don’t discriminate I don’t believe in any kind of racism so as long as your company values align with that, I’m happy to come on board
Ms Smith-Hill: OK Ebrahim, I would like to offer you the position on the agreed salary of $75,000 per annum. Your starting hours are starting at 8:30am and finishing at 5:00pm with ½ hour lunch break and Monday to Friday.
Mr Kheriwala: Not a problem.
Ms Smith-Hill: We would be looking at your starting date to be the 23rd if that’s OK.
Mr Kheriwala: What is today 16th? Am I right? Oh, 13 sorry. 10 days, 10 days’ time. OK fair enough, not a problem I’m OK with that, yes. If that could be earlier than that, it would be great.
Ms Smith-Hill: Look the only reason I will not be doing earlier as I feel we wouldn’t be able to give you the adequate time and training next week. We have a few things on next week and I think it would be very unfair to bring you in if we were not ready and prepared for it.
Mr Kheriwala: OK.
Ms Smith-Hill: So, if you don’t mind I would like you to give us a week to do that and we can start you on the 23rd.
Mr Kheriwala: OK sure not a problem.
Ms Smith-Hill: Now what I will do Ebrahim is there will be an email coming out to you to confirm your starting time and all that sort of thing and then I will start your onboarding process through our online system which is employment hero. So you will start getting emails from them and so all I ask that you login and complete everything, read all our company policy and procedures that we’ve got in there which is part of our online system and we can go from there.
Mr Kheriwala: Awesome, not a problem.
Ms Smith-Hill confirmed she received the email on 14 October 2023. This was a Saturday, and therefore she did not respond until Monday, 16 October 2023.
The email sent from Mr Kheriwala on 14 October 2023 was addressed to Ms Smith-Hill, with Mr Fox and Ms Powell copied in. The email requested information that she was not willing to and would not release for privacy reasons. She considered that the salary, hours of work included in the salary, and start date had already been agreed upon previously.
She further explained that Mr Kheriwala quite clearly wrote in his email that:
· “in order to make a comprehensive evaluation of the opportunity”; and
· “I believe this discussion is an important part of evaluating potential job offers.”
Ms Smith-Hill said she was confused as this email meant that he has not committed to the offer and was keeping his options open as he has every right to do, similarly to how she considered the Respondent had every right to withdraw the offer. Ms Smith-Hill denied there was any threat in her statement but rather put bluntly that if he was not happy with the initial offer, which he agreed to, then this position is not for him.
Ms Smith-Hill agreed that Mr Kheriwala called her to clarify his request. However, she still refused to provide the information as again, she explained this is a security and privacy issue and she would not disclose this information.
In response to Mr Kheriwala’s statement, Ms Smith-Hill’s evidence is that she would never disclose another person’s salary unless the employee gave her written consent to do so, or she was required by a government agency to do so.
Ms Smith-Hill considered that neither she nor the Respondent could terminate the employment of a person if they were not employed by the Respondent.
In the 16 October 2023 phone call, Mr Kheriwala did mention discrimination and racial prejudice and at some point, during this, she interrupted him to advise the information would not be provided and that he has the right to seek guidance from ‘Fair Work’. Ms Smith-Hill concluded by saying, “Ebrahim, I do not believe that Hi-Reach is a good fit for you and the offer is no longer on the table and wish you the best.”
Ms Smith-Hill explained that when the incumbent commenced work later that day, they were asked if they would have given permission for their salary to be disclosed. The incumbent said no. Ms Smith-Hill notes this conversation occurred after the offer to Mr Kheriwala had been rescinded.
Submissions of the Respondent
The Respondent submitted that at no point did Mr Kheriwala become an employee; one cannot be terminated where they have not started their employment. The Respondent noted that the commencement date was set for 23 October 2023, while Mr Kheriwala emailed the Respondent on 14 October 2023 seeking to reevaluate the opportunity. The offer was then rescinded by the Respondent.
The Respondent submitted that Mr Kheriwala’s accusations about racism and discrimination are offensive, inaccurate, defamatory and have been fabricated to justify something that is not real.
The Respondent submitted that if the incumbent’s salary was higher than that offered to Mr Kheriwala, it would be due to the time the incumbent has spent in the role and the additional tasks performed by that person.
The Respondent noted that Mr Kheriwala’s resume did not demonstrate the minimum requirements for the role advertised, however Ms Smith-Hill could see he completed a Certificate IV in Accounting and Bookkeeping. With this in mind, the Respondent through Ms Smith-Hill, considered that Mr Kheriwala, in his interview, had demonstrated a willingness for self-improvement. Even though he did not meet the requirements of the role, Ms Smith-Hill was willing to train and mentor him to develop his skills and knowledge within the business which would have resulted in Mr Kheriwala becoming a strong team member for the company going forward, and there would have been recognition from this through increases to salary base or increased bonuses.
Submissions following the hearing
At the hearing, I provided to the parties hard copies of authorities of the Commission which supported the position that if an employment offer is rescinded prior to the person performing work, the employment relationship does not exist.
Mr Kheriwala was also reminded that if he considered he had been discriminated against as a prospective employee, he could withdraw his s.365 application and instead make a s.372 application citing s.351 of the Act. In my first communication to the parties on 1 November 2023 upon this application being allocated to me, my Associate wrote the following to the parties on my behalf:
“The Commissioner notes that if the Applicant considers there is some risk to his application, if the Commission finds there was not an employment relationship and no dismissal, the Applicant may wish to alternatively bring a s.372 application (instead of a s.365 application). That is a matter for the Applicant’s consideration.”
The parties were afforded the opportunity to provide written submissions following the hearing. Mr Kheriwala provided written submissions on 18 January 2024, which I have taken into consideration.
Consideration
Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their employment has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee.[1]
When analysing whether there has been a “termination at the initiative of the employer” for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.[2]
There is a dispute between the parties as to whether Mr Kheriwala was ever employed by the Respondent on the basis that Mr Kheriwala had not commenced his employment, and the Respondent rescinded the offer of employment.
Was there an employment relationship?
The two minimum criteria required to make a valid application under s.365 of the Act is that “the person has been dismissed”, and that person alleges that the dismissal was in contravention of the general protections provisions of the Act.[3] The dismissal must have occurred in fact,[4] and whether an employment relationship exists is also a question of fact.[5] This thereby requires me to first determine whether an employment relationship exists between Mr Kheriwala and the Respondent, before determining whether he was dismissed.
In the Full Bench decision of Kelly v Melba Support Services Australia Ltd T/A Melba Support Services,[6] the Full Bench relevantly provided that:
“[21] 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.
…
[25] We accept that the Deputy President made a finding, at [50], that there was no employment contract made between Ms Kelly and the respondent because the conditions stated in the letter of offer were not met. We also accept that the Deputy President erred in so finding, because the letter of offer does not contain any clear words which would justify a conclusion that the terms in question were conditions precedent to the formation of a contract, as distinct from a condition precedent to the performance of an obligation under the contract. Indeed, clause 22 of the letter of offer provides that ‘this Letter of Offer … if signed by you become the contract of employment…’ Ms Kelly signed the letter of offer on 21 October 2020. The letter also makes it plain that it is the ‘commencement’ of Ms Kelly’s ‘employment’ with the respondent that is conditional on a range of matters, including that Ms Kelly ‘satisfactorily passes any safety screening specified at clause 17’.
[26] Notwithstanding this error and the fact that Ms Kelly did enter into a binding employment contract with the respondent for her to be employed in the future if certain conditions were met, the parties did not resolve their differences in relation to whether the conditions had been met and the employment relationship never came into existence. It follows that the error in the contractual analysis did not have any bearing on the correctness of the conclusion reached by the Deputy President on the question of whether or not Ms Kelly was dismissed by the respondent.” (footnotes omitted)
The Full Bench was further satisfied that there was never an employment relationship because Ms Kelly did not provide any services to Melba Support Services (other than in respect of an earlier secondment), and no wages or similar payments were made by Melba Support Services to Ms Kelly. The Full Bench explained the proposed relationship
“never got off the ground”.[7]
In Brightmas v FalconAir Pty Ltd,[8] Yilmaz C considered whether the applicant was employed prior to determining whether an extension should be granted for the making of the application. Of particular note, the Commissioner came to the following conclusion:
“[58] FalconAir terminated the offer of employment, even though Mr Brightman accepted the offer by returning the signed terms. The general principles that once an offer is accepted the contract cannot be terminated apply, except where there are conditions attached to the offer and cannot be met. FalconAir did not waive the conditions, but rather the requirement to meet the conditions became more pressing after the resignation of the Chief Piot and the additional challenges that became apparent that Mr Brightman was unlikely to meet those conditions.
[59] In relation to the matter regarding whether Mr Brightman was employed or not, I find he was not employed as he had not met the conditional requirements of the job, did not perform the job and was not paid for the performance of duties associated with the job. The contract stipulates the start date, and the start date did not come into effect prior to the termination of the employment agreement.”
In Goss v CJD Equipment Pty Ltd,[9] Coleman DP was tasked to determine whether the applicant was an employee in the circumstances where there was no written contract. The Deputy President determined:
“[31] On 23 May 2023, Mr Goss ultimately did accept an offer of employment from CJD. But before the employment commenced, he changed his mind and took a job with another employer. In my view, the significance of this is that if Mr Goss had indeed been an employee of CJD, as he contended, it was nevertheless Mr Goss’s decision to accept employment elsewhere that brought his notional employment with CJD to an end. His last day of work at CJD was 30 June 2023, this being the date that Mr Chapple had set as the end of arrangements established in 2015. But the reason that this was his last day of work was because he had decided to accept another job with a different company. Therefore, even if Mr Goss had been an employee of CJD, he was nevertheless not dismissed. His employment was not terminated ‘on the employer’s initiative’, nor was he forced to resign (see s 386(1)).
…
[33] Mr Goss was not an employee. He was a contractor providing services to CJD pursuant to an oral contract made in August 2015. In May 2023, he agreed to accept an offer of employment with CJD, but before that employment commenced, he changed his mind and took up employment elsewhere. On any view, Mr Goss was not dismissed by CJD. His application therefore does not meet the requirements of s 365, and the Commission has no power to deal with it.”
It is not disputed that Mr Kheriwala orally accepted the Respondent’s offer of employment during the telephone conversation on 13 October 2023. An onboarding email was sent to Mr Kheriwala shortly thereafter, confirming the start date and time as agreed on the phone, the position title and location. Whilst Mr Kheriwala’s position is that he accepted the offer, some facts of significance must be taken into consideration.
Firstly, the onboarding email at [16] had a number of matters that Mr Kheriwala would need to attend to as conditions precedent to commencement of employment. The requirements were stated as ‘must’ be completed and ‘required’ to complete. None of the requirements were completed prior to the offer being rescinded by the Respondent.
Secondly, Mr Kheriwala explained in his email of 14 October 2023 at [17] that in order to make a comprehensive evaluation of the opportunity, he needed further information. He stated it was an important part of evaluating potential job offers.
The language used by Mr Kheriwala demonstrates that he was sitting on the fence, evaluating the written offer that had been put to him, awaiting further information from the Respondent before he would commit in writing. He requested the extent and reason for the difference if the incumbent was earning more than $75,000 per annum.
Having regard to the authorities referred to in this decision, I am satisfied that the proposed employment relationship did not materialise into an actual employment relationship. The offer was rescinded by the Respondent while Mr Kheriwala was weighing up his options. Mr Kheriwala never performed any services for the Respondent and the Respondent did not make any payment to him. Any potential relationship between the parties was dissolved by 16 October 2023, well before the proposed commencement date of the employment relationship on 23 October 2023.
I am of the view that there cannot have been a dismissal if the employment relationship was not in existence.
Conclusion
I am not satisfied that Mr Kheriwala was dismissed by the Respondent within the meaning of s.386(1) of the Act. Accordingly, the Respondent’s jurisdictional objection is upheld, and the application is dismissed.
An order [PR774478] to this effect will be issued.
COMMISSIONER
Appearances:
E Kheriwala appeared for himself.
D Smith-Hill for the Respondent.
Hearing details:
2024.
Brisbane.
12 January.
[1] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162 at [75]; see also Mohzaba v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
[2] Khayam v Navitas English Pty Ltd T/A Navitas English [2017] FWCFB 5162 at [75].
[3] Fair Work Act 2009 (Cth) s365.
[4] Coles Supply Chain Pty Ltd v Milford [2020] FWCFC 152 at [54].
[5] Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [27]/
[6] [2021] FWCFB 4845.
[7] Ibid at [24].
[8] [2020] FWC 6773.
[9] [2023] FWC 2593.
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