NSW Employer Rescinded Employment Offer - Compensation?

[Shazpr61]

Hi,

I had an employer send me an email confirming full time permanent employment, start date, salary and invited me to ask any questions ahead of the start date and also that a formal letter of offer (employment contract) would be emailed to me.

After reading the email, I phoned the employer to confirm I would accept the offer of employment and asked if it was ok to send some questions as the interview did not provide enough time for questions. The employer indicated that would be ok.

The questions asked were relevant to any employment scenario such as compulsory closure, uniform and also mentioned a regular medical appointment I would be required to attend. Several days later, the employer sent a text message to say "due to unforeseen business issues, we will need to withdraw the offer of employment".

My question is, I believe the 3 elements are required, ie: the offer was there, it had been accepted and, as a result I took myself out of applying for further roles.

Can I press for compensation in lieu of notice? I understand there is nothing in the Fair Work Act that covers this issue, but I believe it is not good business practice and they have erred in the way they have gone about this.

 

[Rod]

You may have a claim for unfair dismissal which can include the notice period and loss of wages.

It will depend on the wording of the offer and the questions you asked.

 

[Iamthelaw]

There is no claim for unfair dismissal as you aren't an employee under the Act.

There may be a cause for breach of contract although more information would be required.

 

[Shazpr61]

There is no claim for unfair dismissal as you aren't an employee under the Act.

There may be a cause for breach of contract although more information would be required.

Thanks for your help. I would be interested to know if a breach of contract or other exists. To clarify further:

I attended 2 interviews one with a Director of the business who then asked me to meet with the rest of the team.

The owner phoned me by 5.30 pm that day to offer me the job and stated the team wantedcto work with me. I asked if I could consider overnight and confirm in the morning.

I rang at 11am next morning and spoke to the Director who thanked me for accepting the role.

The offer was made by email with a start date, salary and expected start and finish times the email stated a formal letter would be sent to me within 2 days and closed with 'Welcome 'Aboard'. The email also invited me to ask any questions if I had any.

The questions I asked were:

1. Is there a forced shutdown over Christmas/new year?
2. What the reporting structure was in the absence of the owner?
3. What was the expected dresscode ie was a uniform required?
4. Was any PPE needed?
5. Where there annual performance reviews?

I also mentioned I had an ongoing medical appt every 4 to 6 weeks and would be happy to come to work after and take it as unpaid leave.

I hope the extra info helps. I appreciate the help. I think they did the wrong thing.

Thanks

 

[Rod]

There is no claim for unfair dismissal as you aren't an employee under the Act.

What leads you to this conclusion (ie what section of the Act?)

The key phrase might be in the text msg " we will need to withdraw the offer of employment". Employer makes reference to employment, not a contract. By this stage it is arguable an offer was made and accepted.

I agree breach of contract (promissory estoppel) is likely to have occurred. I was thinking of Walker v Citigroup Global Markets Australia Pty Limited (formerly known as Salomon Smith Barney Australia Securities Pty Limited) [2006] FCAFC 101

I also mentioned I had an ongoing medical appt every 4 to 6 weeks

Suspect this frightened them off.

Did you put your acceptance in the email?

 

[Shazpr61]

What leads you to this conclusion (ie what section of the Act?)

The key phrase might be in the text msg " we will need to withdraw the offer of employment". Employer makes reference to employment, not a contract. By this stage it is arguable an offer was made and accepted.

I agree breach of contract (promissory estoppel) is likely to have occurred. I was thinking of Walker v Citigroup Global Markets Australia Pty Limited (formerly known as Salomon Smith Barney Australia Securities Pty Limited) [2006] FCAFC 101



Suspect this frightened them off.

Did you put your acceptance in the email?

Hi thanks for the additional info Rod.

In my email I thanked them for offering me the role, but I had verbally accepted the offer during a phone call with the business owner/director. Their email stated: "As per our conversation I wish to confirm your employment" then went on to confirm a letter of engagement was being prepared.

Thank you so much for your help.

Regards,

 

[Shazpr61]

Hi Rod, yes I ventured down the path of asking the questions only because in the interview(s) time was short and the Director invited me to ask if I had any, post interview.

I accepted the role verbally (prior to receiving the below confirmation email:

As per our conversation I wish to confirm your employment with...

I will email you a letter of engagement prior to finishing on Friday. I will be in the office on Wednesday morning, if you wish to call me to discuss anything or alternatively my mobile number is ... and welcome to (name of company).

I responded with some questions and thanked them for the offer.

Once the questions had been asked, they responded with "Due to unforeseen business circumstances I have to withdraw (Name of Company's) offer of employment.

Hope this clarifies? Really appreciate your help.

Regards

 

[Iamthelaw]

What leads you to this conclusion (ie what section of the Act?)

The key phrase might be in the text msg " we will need to withdraw the offer of employment". Employer makes reference to employment, not a contract. By this stage it is arguable an offer was made and accepted.

I agree breach of contract (promissory estoppel) is likely to have occurred. I was thinking of Walker v Citigroup Global Markets Australia Pty Limited (formerly known as Salomon Smith Barney Australia Securities Pty Limited) [2006] FCAFC 101



Suspect this frightened them off.

Did you put your acceptance in the email?

Hi Rod,

Section 382 which sets out the 'procedural requirements' - s382(a) mandates that the person must be an employee who has completed a period of employment with their employer of at least the minimum employment period. Moreover, (b)(i) - (iii) set out some other requirements.

The minimum employment period referred to in s382 is found in s383:

(a) if the employer is not a small business employer — 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer — one year ending at that time.”

 

[Shazpr61]

Hi Iamthelaw,

Thanks for the additional info regarding unlawful dismissal. I think Rod might be correct in that it is a breach of contract as the offer had been accepted by me verbally and email correspondence and text messages allude to the job offer and acceptance.

 

[Rod]

Section 382 which sets out the 'procedural requirements' - s382(a) mandates that the person must be an employee who has completed a period of employment with their employer of at least the minimum employment period. Moreover, (b)(i) - (iii) set out some other requirements.

Thank you.