Offer of employment withdrawn during negotiations…unjustified dismissal found in the particular circumstances…

In a recent decision of the Employment Relations Authority “Rebecca” was awarded over $5,500.00 following an employer’s withdrawal of an offer of employment during negotiations.

As background: Rebecca was originally employed by a contractor (who was contracted by the employer) but the contractor died unexpectedly.  As a result the employer asked Rebecca to continue to provide services as a “stop-gap” until a replacement for the deceased contractor was found.  Rebecca provided services for a two-week period during which she was in negotiations with the employer in respect of a formal offer of employment that had been made to her.

The negotiations broke down following serious misconduct and performance issues, including failure by Rebecca to follow lawful demands, and allegations that she was using/cultivating cannabis at the workplace.  Consequently the employer withdrew its offer of employment.

The ERA found that Rebecca was in fact employed by the employer during the two-week period; that the withdrawal of the formal offer of employment was an “immediate and abrupt” dismissal; and that the process leading to the dismissal was defective.

As a result, lost wages and compensation to the value of over $5,500 were awarded to Rebecca.

The ERA went on to find that there were at least serious performance issues for which Rebecca was blameworthy, and which had led to the dismissal.  As a result the compensation payable by the employer was reduced to $3,000.

The key point to take from this scenario is that once a person is employed, they are entitled to be afforded all minimum employment rights as provided for under New Zealand law.  The question of what constitutes “being employed”, however does not always have a black and white answer …

If you would like assistance with any of your employment processes, please feel free to contact the writer for a relaxed and confidential initial chat.