Importance of pre-employment checks

A recent decision of the FWC has highlighted the importance of conducting pre-employment checks before engaging an employee in a business.  In Dembowska v Abergeldie Personnel Pty Ltd [2026] FWC 801 the applicant launched an application to make a dismissal claim after a failure to fulfil certain pre-employment requirements resulted in the withdrawal of her job offer.

The applicant had signed a letter of offer and a few weeks later a deed of confidentiality and restraint as well as an employment agreement. Her start date was to be a few weeks later but she had commenced the induction process of which the applicant had not sufficiently completed to the satisfaction of the business. A week prior to her start date the applicant was informed that she would no longer be required for the role.

The court found that ‘there was a binding employment contract between the parties as at 29 September 2025’ however, found that there was no employment relationship between the parties at any time.  This was based on the fact that the applicant had not attended the workplace nor been directed to undertake any work.  The applicant also did not have access to the businesses computer systems and had remained in her previous role as at the date that she was advised she was no longer needed.  The Court concluded that the applicant may still have an action for breach of contract, but not in dismissal.

Key Takeaway: Complete all pre-employment checks prior to an individual commencing employment. We recommend that you also consider going one step further by obtaining all necessary qualifications or requirements and complete all background checks before issuing a contract for employment.  In most cases it is a good idea is to ensure that the contract states that the contract commences on the first day of work to avoid any issues around pre-employment checks and avoid potential claims of breach of contract.