Did they really start before the first day? Why the Jansen v Sodexo Decision Matters to Australian SMEs

The Fair Work Commission’s recent decision in Jansen v Sodexo Remote Sites Australia Pty Ltd [2025] FWC 707 sent a clear message: the practical realities of employment can outweigh strict contractual formalities.

Briefly, Pieter Jansen’s unfair dismissal claim hinged on whether his employment started with mandatory, paid training on February 28th 2024, or the contractual date of March 6th 2024, as this determined if he met the minimum service period.

While the case specifically addressed pre-mobilisation training, its implications are far broader, particularly for Australia’s vast network of small and medium-sized enterprises (SMEs).

The decision establishes a precedent where any mandatory activities organised and paid for by the employer before the formal start date in a contract could be considered part of the employment relationship. This extends beyond pre-mobilisation, encompassing a range of pre-employment activities that are common practice in many businesses.

Consider these scenarios:

• Induction Sessions: Mandatory orientation sessions, even if held days before the “official” start, could now be viewed as part of the employment period.
• Compliance Training: Safety training, industry certifications, and other mandatory compliance courses are potentially included.
• Onboarding Activities: Team-building, policy briefings, and any required preparatory work could blur the lines between pre-employment and employment.
• Licensing and Certification: Employer-organised and funded licensing or certification processes may now be considered part of employment.
• Pre-Employment Meetings: Mandatory briefings related to the role could also be included.

This is critical for SMEs, who often rely on the probationary period as a safety net.

The practice of waiting until the last minute, sometimes the final hours, to make a decision about terminating an employee during probation could now carry significant legal risks. If the employee’s “start date” is deemed earlier than anticipated due to these pre-employment activities, they might have already accrued the minimum employment period for unfair dismissal protection.

SMEs often operate with leaner ‘HR’ resources and may not have the same level of legal expertise as larger corporations. This decision underscores the need for meticulous record-keeping and clear contractual definitions.

Key Takeaways for Employers:

• Clarity is Crucial: Clearly define the start date of employment in contracts and policies. Avoid ambiguity between pre-employment and employment activities.
• Review Your Processes: Scrutinise all pre-employment activities, including training, onboarding, and meetings. If they are mandatory and paid for, they could be considered part of the employment relationship.
• Err on the Side of Caution: When in doubt, it’s safer to assume that any mandatory, paid activity could be considered part of the employment period.
• Seek Professional Advice: If you are uncertain about your obligations, seek advice from an employment lawyer or hr professional.

The Jansen v Sodexo decision serves as a timely reminder that the Fair Work Commission prioritises the practical realities of employment. For Australian SMEs, this means a shift in approach.

Proactive planning, clear documentation, and a willingness to seek expert advice are essential to mitigate legal risks and ensure compliance. By understanding the broader implications of this decision, SMEs can safeguard their businesses and foster fair and compliant workplaces.

Don’t let these changes leave you uncertain. Contact us today for expert advice on ensuring your employment practices are compliant and up-to-date. We can help you review your contracts, policies, and procedures to protect your business.

Contact us and gain peace of mind – simply click the link below and reach out to us now.

Note: This article was crafted and approved by a human using Ai.