Short-term memory and a long-term job offer
Once a job offer is accepted, both sides are bound to the agreement – regardless of any unaccepted subsequent offers
Aug 18, 2015
By Jeffrey R. Smith
It can be tough for employers to find the right talent they need.
Recruitment and interviewing applicants can be a long process. Once the right person is found, an employer can be eager to offer them a position and get her name on the dotted line — even if the position may not start for some time. However, in such circumstances where a job candidate may not start for awhile, the employer had better not forget about the offer.
Sometimes someone is hired but for some reason the employer can’t or won’t proceed with employment, and the person is let go before she even starts work. Though employment standards legislation doesn’t generally address such circumstances, courts have often found the employee is still entitled to something. The factors that go into determining reasonable notice for a regular employee — the importance of the job, the skills necessary, availability of similar employment — can be considered for someone dismissed before she starts working. If the employee was induced to leave another employer to take the position, that can lead to a notice entitlement as well, not to mention the potential for a breach of an employment contract.
A different sort of situation developed for a Saskatchewan emergency medical services (EMS) provider when one of its part-time casual paramedics decided to go to paramedic school to get his full paramedic license. The EMS provider wanted to bring the paramedic on in a full-time position once he completed his one-and-a-half-year program and became licensed, so it sent him an offer letter saying he could report to work a week after he completed the program.
The paramedic jumped at the opportunity and formally accepted the offer. Soon after, he left to attend the program at a nearby college, but continued to work occasionally for the EMT provider on a casual basis.
A few months before the end of the paramedic program, the paramedic received a second full-time job offer from the EMT provider. The paramedic was confused because the offer had slightly different terms and he had already accepted the previous offer. He emailed the operations manager to say so but made no other response to the second offer.
A month later, the EMT provider withdrew the offer, saying he hadn’t formally responded to it, meaning the paramedic separated himself from employment. It sent him a record of employment stating he had quit.
An arbitrator found the paramedic could have done more to clarify the situation, but the fact remained he had accepted the original offer of a full-time position and when that happened, an employment contract was formed. The paramedic lived up to his obligations in the contract by attending and completing paramedic school to get licensed, and was ready to report to work when it was finished.
The EMT provider’s second offer couldn’t supersede the first one without the paramedic’s agreement, said the arbitrator. The EMT provider was ordered to reinstate the paramedic in the full-time position originally offered to him with compensation for lost wages. See Medstar Ventures Inc. and HSAS, Re, 2014 CarswellSask 483 (Sask. Arb.).
Whether the employer had an administrative error or changed its mind on the terms of the first employment offer, it didn’t matter because it had entered into an employment contract when the paramedic accepted the first offer. Any attempt to change things required the employee’s consent or else it was a termination of employment requiring notice.
It may be nice to lock down talent well in advance, but an employer who does so better not forget about it. An accepted job offer is a contract – even if the position doesn’t start for more than a year.
© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.