When Does Employment Begin for Public Servants?
Lessons from Heinis v Commonwealth of Australia
In a recent case before the Fair Work Commission, an important question was answered: when does an employment relationship officially begin—when a public servant signs the offer letter, or only once they actually commence work?
The decision in Brendon James Heinis v Commonwealth of Australia (as represented by the NDIA) [2025] FWC 1459 provides clarity on this issue and offers useful guidance for employers navigating conditional offers and discrimination risks during recruitment.
The Background: A Conditional Offer and a Change of Heart
Mr Brendon Heinis accepted a conditional offer of employment from a Commonwealth agency (the National Disability Insurance Agency or NDIA). As part of the onboarding process, he completed all required steps, but his start date was set for 10 February 2025 —weeks in the future.
In late January, before his official start date, Mr Heinis disclosed to the agency that he had a disability and was also a carer for his disabled children. Just two days later, the agency withdrew the offer, citing concerns about his character—specifically, referencing Mr Heinis’ phone calls to the agency and critical remarks about the agency and its work.
The Legal Claim: Was This a Dismissal?
Believing the decision to rescind the offer was discriminatory, Mr Heinis lodged a dismissal-based general protections application under section 365 of the Fair Work Act 2009 (Cth). He argued that the NDIA’s withdrawal of the offer amounted to a dismissal, and that it occurred for prohibited reasons, including his disability and carer responsibilities—both of which are protected attributes under workplace discrimination law.
The Commission’s Ruling: No Employment, No Dismissal
The Fair Work Commission found that no employment relationship had been established at the time the offer was withdrawn. Although Mr Heinis had accepted the offer and completed onboarding steps, his employment was not scheduled to commence until 10 February 2025, and the offer was explicitly conditional.
Since his employment had not yet started, the Commission held that there could be no dismissal under the Fair Work Act. As a result, the application was dismissed for lack of jurisdiction.
What This Means for Employers
While the decision was clear in this case, it should not be seen as a free pass to rescind job offers without consequence. Employers should take note of the following important takeaways:
- Employment Begins When the Contract Says It Does
Make sure that offers of employment clearly specify when the employment relationship begins. This may be the start date or potentially some earlier event (i.e. the completion of certain onboarding steps), but clarity is essential.
- Conditional Offers Must Be Well-Defined
Where an offer is conditional, employers should:
- Clearly outline what the conditions of engagement are;
- Include a statement that the offer may be withdrawn if conditions are not met; and
- Apply conditions consistently and transparently.
- Be Cautious with Rescinding Offers Based on Protected Attributes
While this case was dismissed due to a lack of jurisdiction under the Fair Work Act, prospective employees may still pursue other legal avenues, including:
- General protections (non-dismissal) disputes under Part 3.1 of the FW Act;
- Federal or State anti-discrimination complaints.
Withdrawing an offer shortly after disclosure of a disability or carer status can raise red flags, even if unrelated. Employers should be prepared to:
- Provide written, lawful reasons for withdrawing any offer;
- Avoid decisions that appear retaliatory or discriminatory; and
- Seek legal advice before taking action in sensitive situations.
Final Thoughts: Legal Clarity, But Not a Legal Shield
The Heinis decision clarifies when an employment relationship begins for the purposes of the Fair Work Act. However, it also serves as a timely reminder that actions taken before the first day of employment can still have legal and reputational consequences. Employers should approach conditional offers and rescission decisions with care, documentation, and legal awareness.
If you are an employer unsure about the risks of withdrawing a job offer—or a prospective employee concerned about discrimination—contact our employment law team today for tailored legal advice.
