Conditional job offers in NZ: when an employer can withdraw and what claims apply
When a conditional offer of employment is made to an employee and that offer is accepted and the employer later moves to withdraw that offer unfairly, the employee can make a claim for unfair dismissal, regardless of whether that employee has started work.
Conditional offers of employment - withdrawing the offer can still be dismissal
When a conditional offer of employment is made and accepted, the employer cannot always simply withdraw it. Depending on the facts, the employee may be a "person intending to work" and have the right to bring a Personal Grievance (PG).
Key points
- An offer of employment once accepted and then withdrawn can amount to dismissal, even if the employee has not started work.
- Once accepted, fair consultation and fair dealing is required if the employer is attempting to revoke the offer.
- If an employment relationship has been created by offer and acceptance, the employer must be able to justify ending it.
A person intending to work
The Employment Relations Act defines a person intending to work as a person who has been offered, and accepted, work as an employee. Under ordinary principles of contract law, an offer once accepted cannot be withdrawn.
- An employee can include a person who has not yet started work but has been offered work and has accepted that offer.
- An offer of employment is capable of being accepted regardless of further details to be finalised.
Offer letter for employee
Often an employer will require certain conditions to be met before a prospective employee starts work. If by conduct an employment relationship is created by offer and acceptance, regardless of any conditions (reference checks, background checks, credit checks, drug testing, etc), the employee has rights under the Employment Relations Act 2000.
An offer of employment once accepted and then withdrawn by an employer will amount to dismissal, even if the employee had not started work on what would have otherwise been their first day on the job.
Once accepted, fair consultation and fair dealing is required of an employer attempting to revoke a conditional offer of employment.
If an employment relationship has been created by offer and acceptance before an onboarding process is completed, and the employer decides not to go ahead with continuing to employ that employee, the employer must be able to justify their decision.
A person intending to work
The Employment Relations Act defines a person intending to work as a person who has been offered, and accepted, work as an employee.
- An employee can include a person who has not yet started work but has been offered work and has accepted that offer of employment.
- Under ordinary principles of contract law, an offer once accepted cannot be withdrawn.
- An offer of employment is capable of being accepted regardless of further details to be finalised.
Regardless of any conditions to an offer of employment, if a person has accepted an offer of employment, that person will become a person intending to work under the Act and they will acquire statutory rights including being able to pursue an unfair dismissal personal grievance claim if the employer later tries to withdraw the offer.
If an employer cannot justify dismissal, the employee will become entitled to compensation and reimbursement of lost wages.
Read our full article
We write for the Deals on Wheels magazine. Read our full article here: Conditional offers of employment and unfair dismissal
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