Offers of employment are withdrawn more often than employers expect. There are a number of common triggers, including where a condition has not been satisfied (for example, receipt of satisfactory references or evidence of the right to work), a change in business requirements, or concerns arising from a candidate’s pre-start conduct.
Many employers assume that no start date means no contract. However, this assumption can be risky. As demonstrated in the recent case of Kankanalapalli v Loesche Energy Systems, once an offer of employment has been accepted, a binding contract may arise, even where no formal written contract has been issued or employment has not yet commenced.
To understand why this assumption can be problematic, it is important to understand when a binding contract actually arises. A contract can be formed before employment starts where there has been a valid offer and acceptance.
The offer must be made by someone with authority to bind the employer, and acceptance can be communicated by the applicant in a variety of ways, including by phone or email.
Offers are often expressed to be conditional. However, the legal effect of those conditions depends on how they are drafted. In particular, there is a critical distinction between:
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