When a job offer is no such thing.

November 13, 2008 12:58 AM

Australian Industrial Relations / Contract Law: when a job offer isn't worth the paper it's written on, what recourse does one have?

You are not my lawyer and your answers aren't legal advice - I still wanna hear it. Even if your experience of law is outside AU, I'd still like to hear your opinions as a matter of interest as long as you say which jurisdiction they refer to.

A has a great professional job in Adelaide, but decides (with their partner, B) that it would be good to start a new life in Perth. B obtains a government job in Perth and A applies to recruitment agency R, amongst many others.

R finds employer E offering a job that is a very good fit for A, there is a successful phone interview, a letter of offer is sent, signed & returned. Four weeks later, A gives notice to their current employer and has begun handing work over to other employees.

Two weeks later (today): A and B will be visiting Perth next week to view an apartment and sign a lease as well as meet R and E face-to-face. A confirms the meeting (arranged when the offer was signed) with R then receives a call from E indicating that they are reviewing all existing and particularly new employees with a view to saving cash now that there's a bit of an economic downturn on. E has not rescinded the offer yet but is clearly seriously considering it. A, R and E will likely still meet next week as planned, at which point E expects to have some sort of decision.

Clearly A cannot compel E to employ them because all employment contracts have a probationary period wherein the employee can be terminated for no cause whatsoever. However, A believes the offer of employment to be a contract, though compelling fulfilment of the contract is worthless (A would expect to see one day at work before being fired for suing their new employer while in the probationary period!). A believes that they have placed detrimental reliance on that contract and ponders damages on that basis - A and B have wound up their old life (jobs, housing), booked plane tickets and removalists and are about to pay the bond on a new apartment.

Does A have any legal recourse against E, either under IR or contract law?

Obviously A is mightily pissed and is now seeking another job but really doesn't want to be job-hunting and interviewing when they should be packing. Finding another job is likely (A has an excellent resume and references in what was a very in-demand field 2 months ago), but it's not necessarily likely to be as good as the one at E. A doesn't trust E as far as he could throw them and will certainly be looking very hard for new jobs even if E does take them on.

Yes, I am A.

posted by Ultimate Sockpuppet the Second to law & government (7 answers total)

A, I hope it works out for you - Perth can be a bit of a drag with nothing to keep you busy.

To put things into perspective though, here is another story.

T is a Tongan casual employee at a cigarette packing plant. G is his Greek supervisor (not relevant but gives me different letter to play with). T has 6 kids and, as you would imagine, is not earning much money packing cigarettes at night.

During the week before Christmas (the plant's busiest week of the year with regular 20 hour days!), G, who has always disliked the less 'white' employees at the plant, decides to reduce T's hours down to 0.

T's recourse? Sweet F.A.

I'm just glad that your resume will allow you to get up and running, although I hope your field is still in demand.

Sorry about the lack of legalese and my location is Brisbane.
posted by micklaw at 2:04 AM on November 13, 2008

From another Queensland perspective, you have no recourse. Almost certainly under contract law and definitely under IR law. Sometimes life sucks like that. At least you're not a Tongan cigarette packer.
posted by dg at 2:14 AM on November 13, 2008 [1 favorite]

A, just as micklaw said above, I hope it works out fort you in WA. Perth is a nice place but can be deathly boring if you don't have work. I lasted about 8 months - and thats with work - but recently came back to the East Coast. But congraultations on finding the apartment - those are VERY hard to find in Perth at this time.

I believe that the contract that you have signed does not take effect until the start date of the contract, i.e. the the start date of employment. Until then, A's recourse, again, is sweet FA.

WA seems to have a higher level of unionisation than the other states - maybe its worth finding out who the union is for E, and asking them for advice.

Even the best case - even if A can compel E to employ A, you mentioned A has a probationary period. So on Day 1 they give A notice of redundancy as per the terms of the contract. E could also theoretically call it "Gross Misconduct", a term whos definition is usually at their complete decresion - which is immediate dismissal. Doesn't look good on the resume.

It doesn't look good I'm afraid ... maybe its time to get R (or competitor of R) to find alternative options?

Again - usual caveat - I'm not a legal person, my location is also Brisbane, but I have gone through the above before (albeit in another country with similar employment laws to Australia).
posted by pingudownunder at 2:21 AM on November 13, 2008

mick: I lol'd... certainly things could be much, much worse than they are and my life is by no means a struggle. I'm pretty much resigned to getting shafted but find it difficult to believe there is basically no recourse whatsoever. Seriously, go read up on promissory estoppel - this seems exactly what that is meant to prevent, as far as I can see.

The problem is that I can see no precedents of its use in IR (not that I really know how to look properly), and applying it would be a little weird. You'd have more rights before you began the job than after, due to the probationary period.

I think I'll try to renegotiate the offer into a 6mo contract with early-termination penalty payments.

(PS: A is not a lawyer but B has a degree in it and pointed A in the general direction so lots of textbook- and wikipedia-reading ensued)
posted by Ultimate Sockpuppet the Second at 3:30 AM on November 13, 2008

Actually what you are talking about is called anticipatory breach, and sometimes may give rise to an action for damages. The letter of offer probably excludes that kind of liability effectively, however. i would either consult a laywer for real, if you're serious about pursuing this at all, or perhaps I would talk to a Union which is active in your industry to see if they have any advice.

IANYL nor am I A Australian L.
posted by tiny crocodile at 7:32 AM on November 13, 2008

I am not any kind of lawyer, Australian or otherwise, but I do have an (English) law degree. Promissory estoppel is not going to help you here unless it's taken a radically different turn down under.

The key phrase in the wikipedia article you link is that Lord Denning says that estoppel can be used as a 'shield not a sword'. That is, it's to be used in defence: if the plaintiff P sues the defendant D to enforce strict contract rights, then D may attempt to claim that P earlier promised not to enforce full rights, and that D has relied upon this promise to his/her detriment.

Your case is surely more that there is already an implicit contract, and that the breach of that contract has exposed you to damages? I'm afraid I have no idea how this actually works in any jurisdiction in the world any more. In any case, my normal advice to people contemplating threatening big companies with lawyers is: don't! How will it get you any further forward? You surely don't want to be employed under duress of a lawsuit, and I would have thought you are unlikely to recover your expenses on top of the money to pay the lawyers that won the case for you. Persuasion & influence is the way to go here.
posted by calico at 3:42 PM on November 13, 2008

I'm really quite embarrassed because I've just read the section on p.e. in Australian law which explicitly says that it can be used as reason for a claim. Fancy that.

Nonetheless, I stand by my advice: don't try to threaten the company with the law. For all we know, the downturn might be short and sharp for them, and they may be hiring again soon.
posted by calico at 4:00 PM on November 13, 2008