9.05.2018

KEEPING YOUR PROMISE: HAVE YOU MADE AN OFFER OF EMPLOYMENT THAT YOU CAN NOT KEEP?

An employment relationship commences with an offer and acceptance of employment. 

An employment relationship commences with an offer and acceptance of employment.  This is a simple contract law premise, but there are a few legal tips that employers need to watch out for, especially in relation to trial periods and personal grievances.

It is important to remember that the definition of an employee under the Employment Relations Act 2000 (ERA) includes a person intending to work.  A person intending to work is subsequently defined as a person who has been offered, and accepted, work as an employee.

Offer and Acceptance

An offer of employment can take many forms.  For example, it could be an offer over the telephone or via an email, or the successful applicant could receive a letter of offer or a written employment agreement to review.  The key requirement is that it must be an offer which is capable of acceptance; that is, an offer where the person knows, or is aware of, the essential terms of employment such as hours or work, location, remuneration, the position and its duties.

The ERA requires an employer bargaining for an individual employment agreement to provide a copy of the intended agreement to the employee, advise the employee they can take independent advice, give them time to do so, and consider and respond to any issues raised by the employee.  The clear implication (although it is not specifically set out) is that the offer of employment must be in writing, in the form of an agreement.  The failure of an employer to do this does not invalidate the employment offer or agreement.  All it does is establish that the employer has breached the ERA in respect of the bargaining process.  This renders the employer liable to a penalty.

All terms of employment do not have to be settled for a contract of employment to have formed but the successful applicant does have to confirm acceptance of the offer.  Acceptance can also take many forms, such as a ‘yes I would love the job’ on the telephone or by reply email, or the returning of a signed employment agreement.

Note that if the employer’s offer requests that acceptance needs to be in writing, then it needs to be in writing for acceptance to be effective.  It is also important to note that an offer can expire or be revoked if not accepted prior.  However, once accepted, the offer can no longer be cancelled or revoked and the successful applicant magically turns into an employee!

Personal Grievances

As a person intending to work is an employee under the ERA, they are entitled to access the statutory personal grievance procedure from the date they accept the offer of employment.

It is important to remember that even if the employee has not commenced work in the business yet (in fact, they may still be working for another employer), they must be treated as an employee for all intents and purposes.  For example, an employer cannot decide that they no longer require the successful applicant and advise them that they are no longer needed. This would almost certainly amount to an unjustified dismissal.

Trial Periods

Employers can employ employees, whom they have not previously employed, on a trial period for up to 90 days from the commencement of employment.  The employee on a valid and enforceable trial period is then barred from bringing a personal grievance in respect of any dismissal during the trial period.

Employment commences when it is offered and accepted.  If the offer of employment does not contain a written trial period then the employee cannot subsequently be placed on one.

The reasoning for this proposition is that an employee employed previously includes an existing or current employee of the employer, even if they have been an employee for only a short while, and even though the employee may not have yet commenced work.  If employment has commenced prior to the written trial period being agreed then the person is already an employee and cannot then be placed on a trial period.  For example, if there is an offer and acceptance of employment on the telephone or via email and only after does the employer give the employee a draft employment agreement to review, with a compliant trial period in it, the trial period will be null and void because the person is already an employee.

Employers need to be vigilant that they (or any recruiter acting on their behalf) do not make an offer of employment capable of acceptance over the telephone as there is then no possibility of a trial period.

Best practice

In a nutshell, do not make an offer of employment that you cannot keep.

If you wish to place a new employee on a trial period it is best practice that the offer of employment includes a written employment agreement containing a compliant trial period, and the agreement should be agreed and signed before the employee commences work.

Do you need expert legal advice?
Contact the expert team at Hesketh Henry.
Kerry_100x100 1
Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

Related Articles / Insights & Opinion

Updated Subcontract Agreement: SA-2017
The SA-2009 form of Subcontract Agreement is commonly used in the construction industry. It has undergone a review and a new SA-2017 form has been produced.
3.07.2018 Posted in Construction Law & Health & Safety Law
Distribution Agreements – 6 Key Considerations
While the exact nature and terms of a distribution agreement will vary between industries and jurisdictions, these 6 issues will always be important.
28.06.2018 Posted in Corporate & Commercial law
Continued Importance of IP Protection for Manufacturers
The Ministry of Business, Innovation and Employment (MBIE) has recently released a report which identified key trends and challenges for the manufacturing sector (that report can be accessed here). Th...
28.06.2018 Posted in Corporate & Commercial law
CONSTRUCTION LAW UPDATE – JUNE 2018
Recent Construction Law Decisions and Developments in New Zealand
18.06.2018 Posted in Construction Law
Updated Standard Consultancy Agreements
Two of the most commonly used standard agreements to engage consultants are the ACENZ / Engineering New Zealand (formerly IPENZ) Short Form Agreement (“SFA”) and the Conditions of Contract for Consultancy Services (“CCCS”).
5.06.2018 Posted in Construction Law
Managing Employees’ Mental Health Issues
Ministry of Health statistics confirm that during 2016, 169,454 people accessed mental health services in New Zealand. The law of averages suggests that most workplaces will – to a lesser or greater degree – be affected at some time by an employee’s mental health issue.
31.05.2018 Posted in Employment Law & Health & Safety Law
Managing Medical Incapacity: Enough To Make You Feel Sick?
Managers and HR practitioners often tell us that dealing with employees who are genuinely too sick or injured to work is one of their least favourite tasks. Frankly, we can see why.
31.05.2018 Posted in Employment Law
Send us an enquiry
For expert legal advice, please complete the form below or call us on (09) 375 8700.
  • This field is for validation purposes and should be left unchanged.