Failing to comply with Hiring conditions does not enable unfair dismissal access

Failing to comply with Hiring conditions does not enable unfair dismissal access.png

Failing to comply with Hiring conditions does not enable unfair dismissal access

In what is probably an unusual situation, the failure of a job applicant to meet an employer’s screening standards satisfactorily has been regarded as a legitimate reason not to hire an applicant. In the absence of any suggestion of discrimination, it also meant that the applicant was not able to pursue an unfair dismissal claim.

The situation arose recently in an application heard and subsequently dismissed by Deputy President Reg Hamilton.

The applicant lodged an unfair dismissal claim on 19 February 2021; however, her `employer’ Melba Support Services (MSS), submitted that no employment relationship was formed at the time. Consequently, the applicant was not dismissed within the meaning of the Fair Work Act 2009.

The background to the case was a decision by the Victorian government in December 2016 to transfer its public disability services to non-government providers. The process for existing employees involved an initial secondment and then being later transferred to direct employment with certain providers, such as MSS.

In September 2020, the applicant received a letter from MSS confirming the details of the transfer of her duties and a letter of offer of employment with employment due to commence on 1 January 2021. Critically, in this case, the letter of offer confirmed that the offer of employment was conditional upon the applicant successfully completing a series of safety screenings, including a criminal history check and a Working with Children check.

Despite an initial face to face meeting and two further written requests, the applicant failed to provide the necessary identification requirements for MSS to conduct the criminal history check. In fact, as the Deputy President noted, she failed to respond both verbally or in writing to either request.

After initially extending her operative start date to 31 January 2021, MSS wrote to her on 10 February 2021, confirming that the employment offer had lapsed due to her failure to satisfy the screening requirements. Somewhat unfortunately, the letter contained a reference to her `termination of employment’.

Nevertheless, Deputy President Hamilton supported MSS’s process. As he stated,

“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…No payment was received and no services were 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”.

Hence, the Deputy President’s concluding remarks, “It follows that I must find Ms Kelly was not an employee of Melba when it withdrew its offer of employment, and she was not dismissed”.

He dismissed the application.

SK v Melba Support Services (C2021/884) 4 June 2021

For queries about pre-conditions of employment, engaging employees, or any other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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