Truck driver loses dismissal claim over unfulfilled job offer conditions

By Susan Edmunds of RNZ

A man who argued he was unjustifiably dismissed from a role he never started has lost his bid for compensation and reimbursement.

Shaun Cavanagh was offered employment as a truck driver by Dynes Transport Tapanui in August 2023.

He told the Employment Relations Authority that he accepted the offer but became unwell before he started and was later told the offer was withdrawn.

Dynes argued the offer was subject to conditions and they were not fulfilled.

Authority member Philip Cheyne noted that Cavanagh initially responded to an advertisement for drivers.

He attended an interview and had his driving assessed. There was some discussion about when he could start and both sides agreed he said four weeks.

That same evening he was told to get a new employer form from his bank with his bank details and to supply his IRD information. A draft employment agreement was arranged and an offer generated.

The letter of offer was conditional on a drug test, a receipt of a signed copy of the employment agreement and an ACC pre-employment claims history check.

On September 12, he provided a copy of that agreement to a lender to support a loan application.

It was approved subject to the agreement being signed by both parties.

That day, he was emailed by one of Dynes' general managers, noting his agreed start date was September 20, when they would both sign the agreement.

The manager said Cavanagh told him he would get a call from someone, which happened. He said he thought it was a rental agency and he told the person Dynes had made a conditional employment offer but he would not vouch for or be a referee for Cavanagh.

Cheyne said it was likely this was the lender.

But on the day Cavanagh was to start, he was unwell and his partner messaged the manager. He provided a medical certificate saying he was unfit to work for one week, but probably two – until October 2.

On September 27, the manager messaged him to ask how he was. He sent another medical certificate that said he was likely to be fit to work from November 9.

Cavanagh was told by the manager that he was under pressure to fill the position and if he did there might be other options.

Cavanagh asked him to hold his employment and said he was concerned his sickness would affect the opportunity.

On October 2, the offer was withdrawn. He was given details for another manager at Dynes who was looking for staff.

On November 7, a representative for Cavanagh raised a personal grievance claim of unjustified dismissal.

Cheyne said to have been dismissed, Cavanagh had to be an employee. Cavanagh argued he was a person who intended to work and had been offered and accepted work.

“The offer was conditional on Cavanagh’s consent to and the result of a drug test,” Cheyne said.

“It had been anticipated that Cavanagh would provide his consent and be tested when he first reported for work. But he was unwell and never consented to or underwent a test.

“The offer was also conditional on Dynes receiving a copy of the employment agreement signed by Cavanagh. Although Cavanagh picked up a copy of the proposed agreement, he did not return a signed copy of it to Dynes. Again, it had been anticipated that he would sign it when he reported for work on September 20, 2023.

“The third condition was for Cavanagh to arrange for a pre-employment ACC claims history check to be forwarded to Dynes prior to his employment start date. Cavanagh did not do so.”

Cheyne said he had also not signed the letter of offer to acknowledge it was conditional on the drug test.

“I do not accept that the employment agreement had come into force. As he was never an employee of Dynes, Cavanagh cannot pursue a personal grievance against the company. His claim must be dismissed.”

- RNZ