1
Fair Work Act 2009
s 394—Unfair dismissal
Pieter Jansen
v
Sodexo Remote Sites Australia Pty Limited
(U2024/11441)
COMMISSIONER LIM PERTH, 11 MARCH 2025
Application for an unfair dismissal remedy – whether applicant is a person protected from
unfair dismissal – employment commencement date determined – minimum employment
period met – protected from unfair dismissal.
1. What is this decision about?
[1] Mr Pieter Jansen has applied to the Commission alleging that Sodexo Remote Sites
Australia Pty Limited dismissed him unfairly. Sodexo says that Mr Jansen has not completed
the minimum employment period and is therefore not protected from unfair dismissal.
[2] Sodexo is not a small business employer and dismissed Mr Jansen on Wednesday 4
September 2024. This means for Mr Jansen to be protected from unfair dismissal under s 382
of the Fair Work Act 2009 (Cth), he must have been employed on or before Monday 4 March
2024. Sodexo says that Mr Jansen commenced his employment with them on Wednesday 6
March 2024. Mr Jansen says his employment commenced on Wednesday 28 February 2024.
[3] I conducted a hearing on Wednesday 18 December 2024. I granted permission for Mr
Patrick Mullally to represent Mr Jansen and for Mr Joseph Creese of Mills Oakley to represent
Sodexo. Mr Jansen gave evidence in support of his case. Ms Sarah Richards (Talent Acquisition
Consultant) and Mr Shaun Gibson (Regional Manager, Facilities Maintenance, Upper East
Pilbara) gave evidence for Sodexo.
[4] Having considered the relevant evidence and submissions of the parties, I find that Mr
Jansen’s employment commenced on Wednesday 28 February 2024. He had served the
minimum employment period and was protected from unfair dismissal at the time of his
dismissal.
[5] My detailed reasons follow.
[2025] FWC 707
DECISION
AUSTRALIA FairWork Commission
[2025] FWC 707
2
2. How did Mr Jansen’s employment with Sodexo commence?
[6] Mr Jansen previously worked for Sodexo from April 2019 to July 2022. In early 2024,
Mr Jansen reached out to Mr Gibsonto ask if there were any Fly-In, Fly-Out roles available.
Mr Gibson asked Mr Jansen to send in his resume and offered him a position as a FM
Supervisor. Mr Gibson and Mr Jansen agreed that Mr Jansen would start on Wednesday 28
February 2024.
[7] Originally, the plan was for Mr Jansen to be the supervisor for the ‘A-Swing’, with
another supervisor on the ‘B-Swing’, on an ‘eight days on, six days off’ roster.
[8] Approximately one week before Mr Jansen was due to be mobilised to site, Mr Gibson
asked him if he could change to the B-Swing as the other supervisor had resigned. This meant
that Mr Jansen would have been flying out to site on Wednesday 6 March 2024 rather than
Wednesday 28 February 2024. Mr Jansen agreed to this.
[9] On Thursday 22 February 2024, Mr Jansen was informed that he had been booked to
attend Aveling Fire Training on Wednesday 28 February 2024, and Sodexo Onboarding
Training on Thursday 29 February 2024 from 7:30am to 3:30pm.
[10] While Mr Jansen was attending the Sodexo Onboarding Training, Ms Richards called
him. Mr Jansen’s account is that Ms Richards said that his start date would be Wednesday 6
March 2024. Mr Jansen told Ms Richards that his start date was Wednesday 28 February 2024
as per his agreement with Mr Gibson. Mr Jansen further said that he would be starting his
employment during his R&R cycle, and not on site.
[11] Ms Richards’ recollection is that she called Mr Jansen to advise that she was requesting
his employment contract with a start date of Wednesday 6 March 2024. Ms Richards’ evidence
is that this was an ordinary conversation updating an employee regarding the status of their
contract and she could not recall Mr Jansen raising concerns about his start date.1
[12] On Thursday 29 February 2024, Ms Richards sent Mr Jansen a Docusign copy of his
contract of employment. Mr Jansen signed it that day. The contract specified a start date of
Wednesday 6 March 2024. Mr Jansen’s evidence is that he did not notice the start date when
he signed it.
[13] On Saturday 4 May 2024, Mr Jansen sent the following email to Mr Gibson:2
“Hi [Shaun],
As discussed with you last month, my agreed starting date was 28/02/2024. This was going to
be my first swing but due to Sodexo operational requirements with [other supervisor] resigning
I was asked to do a swing change. This however did not change my starting date with the
company and just meant that I would start on my R&R cycle. When I was called by Sarah
Richards and she asked what my starting date was I told her 28/02. She told me that I don’t get
paid for R&R and that my starting date will be 06/03…so I left it there. When I received my
pay for March I received $6,832.34 net. This pay was the correct pay at 8,306.26 net.
Subsequently I also lost out on super and AL accumulation on the first pay cycle.
[2025] FWC 707
3
Your help to correct this is appreciated.
Thank you,
Kind regards
Pieter”
[14] Mr Gibson forwarded Mr Jansen’s email with the comment, “Hi Phil, Can you please
assist with next steps to resolve this. It was my request to alter start date. This has impacted
Pieter financially. Thanks, Shaun”.
[15] Mr Jansen was subsequently paid two full days’ wages.
3. Submissions
3.1 Mr Jansen
[16] Mr Jansen submits that although there is a comprehensive written contract between the
parties, there was also an oral contract made between the parties. Mr Jansen relies on the Full
Court of the Federal Court’s recent decision in EFEX Group Pty Ltd v Bennett,3 specifically at
[9] where the Full Court stated that “…the terms of an oral contract may be able to be inferred
from the circumstances, including in whole or in part from the parties conduct or course of
dealing between them, or implied where necessary for business efficacy…”
[17] Mr Jansen submits that the evidence supports a finding that there was an oral
employment contract, or oral term of the employment contract that Mr Jansen’s employment
started on Wednesday 28 February 2024.
3.2 Sodexo
[18] Mr Gibson’s and Ms Richards’ evidence is that Wednesday 28 February 2024 was a
‘target’ start date for Mr Jansen. Sodexo submits that Mr Jansen’s actual commencement date
was subject to Mr Jansen completing all required pre-employment checks, satisfying training
requirements and the issuing of a final offer of employment with his terms and conditions.
[19] Sodexo submits that following the B-Swing supervisor’s resignation, Mr Gibson never
informed Mr Jansen that his start date would remain Wednesday 28 February 2024 or that he
would commence employment during his R&R period. Sodexo further submits that the Aveling
Fire Training and Sodexo Induction were attended “pre-employment”, and that it paid for Mr
Jansen to attend these as a gesture of goodwill.4
[20] Sodexo makes the following submissions regarding the written contract of employment:
• Schedule A of Mr Jansen’s employment contract explicitly outlines a commencement
date of Wednesday 6 March 2024.5
[2025] FWC 707
4
• Clause 27 of the contract (Entire Understanding) provides that the contract, “contains
the entire understanding between the parties concerning the subject matter of the
contract and supersedes all prior communications between the parties”. Further, that,
“except as expressly stated in this Contract, [each] party has not relied on any
representation, warranty or undertaking of any kind made by or on behalf of another
party in relation to the subject matter of this Contract”.6
• The parol evidence rule of contractual interpretation indicates that Clause 27 represents
the entirety of the bargain struck between the parties in relation to Mr Jansen’s
employment.
4. Consideration – what was Mr Jansen’s start date?
[21] Sodexo states that the plurality in EFEX found that in circumstances where parties have
comprehensively committed to a written contract, the obligations established by that contract
are decisive. This misunderstands the decision; the plurality found that the obligations
established by a written contract are decisive of the character of the legal relationship.7
[22] In this matter, there is no contest that the legal relationship between Mr Jansen and
Sodexo was one of employer and employee. What is in contest is when the legal relationship
started.
[23] I find that that in addition to the written employment contract entered into on Thursday
29 February 2024, Mr Jansen and Sodexo had an agreement to commence his employment with
Sodexo on Wednesday 28 February 2024. I rely on the following in reaching this decision:
(a) Mr Jansen’s and Mr Gibson’s evidence that Mr Jansen was to mobilise to site for a
Wednesday 28 February 2024 start.
(b) Sodexo directed Mr Jansen to attend the Aveling Fire Training and Sodexo Induction
on Wednesday 28 and Thursday 29 February 2024 when his site mobilisation date
changed.
(c) Sodexo paid Mr Jansen for his attendance at the Aveling Fire Training and Sodexo
Induction.
(d) The Aveling Fire Training and Sodexo Induction did not take place “pre-employment”.
Mr Jansen’s written employment contract details “pre-employment checks and requisite
licences, authorisations and qualifications” as well as “pre-mobilisation briefing”
requirements.8 Neither the Aveling Fire Training nor the Sodexo Induction are listed
under these categories.
[24] I find that Clause 27 of the contract cannot negate that Mr Jansen had commenced work
at an earlier date. It is simply not sensible to suggest that where a contract specifies a different
employment start date to what occurred, that another term of that contract can wipe that reality
out.
[2025] FWC 707
5
[25] It follows that Mr Jansen has served the minimum employment period. He was protected
from unfair dismissal at the time he was dismissed. The matter will now be programmed to
determine the merits of Mr Jansen’s application.
COMMISSIONER
Appearances:
P Mullally of Workclaims Australia for the Applicant.
J Creese of Counsel for the Respondent.
Hearing details:
2024.
Perth:
18 December.
Printed by authority of the Commonwealth Government Printer
PR785128
1 Digital Court Book (DCB) 152 [12].
2 Ibid 60-61.
3 [2024] FCAFC 25.
4 DCB (n 1) 109 [22]-[23].
5 Ibid 36.
6 Ibid 33.
7 CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1, [43]-[44], per Kiefel CJ, Keane and Edelman JJ; [183], per
Gordon J.
8 DCB (n 1) 148.
FAIR WORK COMMISSION HE SEAL OF THE
