13/04/2026
A recent case in the Fair Work Commission (FWC) has highlighted when a worker is not eligible to claim a dismissal remedy in the FWC.
In the case of Ms Izabela Dembowska v Abergeldie Personnel Pty Ltd [2026] FWC 801, the Applicant had signed an employment contract but had not yet commenced employment when the respondent withdrew the offer and ended the employment agreement.
In this case:
- On 29 August 2025 the Applicant was sent a letter of offer for a position that was to commence on 7 October 2025.
- The Applicant signed the letter of offer on 3 September 2025.
- On 4 September 2025, the Respondent sent the Applicant an email which required the Applicant to provide documents and complete mandatory induction modules.
- In late September, the Respondent began to have concerns about the Applicant’s suitability for the role as she had not provided confirmation of working rights and educational credentials, and had not commenced or completed the online induction modules.
- The Respondent concluded that the Applicant did not meet the pre-employment requirements and informed her on the 29 September 2025 that the pre-employment process had ceased and the employment offer was withdrawn.
- The Applicant commenced a General Protections Involving Dismissal claim in the FWC and argued that she had been dismissed within the meaning of section 386 of the Fair Work Act 2009 (Cth) (the Act) and that a binding employment contract was formed between the parties on 3 September 2025.
- The Respondent submitted that the letter of offer was subject to any limitations the Applicant had on her ability to perform her duties and that there could be no employment relationship until those conditions were met.
- The Respondent also submitted that employment had not commenced because onboarding was not completed, there was no formal commencement of the job, no services were performed by the Applicant, and no payment was received by her.
The FWC found that there was no employment relationship between the parties and therefore the Applicant had not been dismissed. In his reasoning, Deputy President Roberts stated:
- Employment contracts and employment relationships are related but distinct concepts
- The parties entered into a binding employment contract when the Applicant signed the letter of offer on 3 September 2025 but there was not yet a employment relationship between the parties at any time, including on 29 September 2025.
- The Applicant had not commenced any work for the Respondent and had not contracted to do so until 7 October 2025.
- The Applicant’s employment with the Respondent was not terminated on the employer’s initiative because the Applicant’s employment had not yet commenced by 29 September 2025.
What does this mean for employers?
This decision highlights that employers have freedom and flexibility to withdraw or terminate employment contracts before employment has commenced without the risk of the employee bringing a claim in the FWC. However, it is important to still keep in mind, as DP Roberts mentioned, the possibility that the employee may have a cause of action for breach of the employment contract.
If you would like advice about employment contracts or termination processes, contact our team of employment law experts.