Aspiring worker loses personal grievance claim for job he never started

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A man who argued he was unfairly dismissed from a position he never took up has lost his claim 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Relations Authority that he accepted the offer but felt unwell before starting and was later told the offer had been withdrawn.

Dynes argued that the offer was subject to conditions and these were not met.

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

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

That same night he was told to obtain a new employer form from his bank with his bank details and to provide his IRD information. A draft employment contract was agreed upon and an offer generated.

The offer letter was conditioned on a drug test, receipt of a signed copy of the employment contract, and a verification of ACC’s pre-employment claims history.

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

It was approved subject to the signing of the agreement by both parties.

That day, one of Dynes’ general managers emailed him, noting that the agreed-upon start date was September 20, when the two would sign the deal.

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 told the person that Dynes had made a conditional offer of employment but would not respond or act as Cavanagh’s referee.

Cheyne said it was likely the lender.

But on the day Cavanagh was going to start, he was not feeling well and his teammate sent a message to the coach. He presented a medical certificate saying he was unfit to work for a week, but probably two, until October 2.

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

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

Cavanagh asked him to keep his job and said he was concerned his illness could affect the opportunity.

On October 2, the offer was withdrawn.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

On November 7, a representative of Cavanagh filed a personal claim for unfair dismissal.

Cheyne said that after being fired, Cavanagh had to be an employee. Cavanagh argued that he was a person who intended to work and had been offered and accepted work.

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

“Cavanagh had been scheduled to consent and be tested when he first reported to work, but he was unwell and never consented or underwent a test.

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

“The third condition was that Cavanagh arrange for a pre-employment ACC claims history check to be sent to Dynes prior to the start date of his employment. Cavanagh failed to do so.”

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

“I do not accept that the employment agreement has come into force. As he was never employed by Dynes, Cavanagh cannot make a personal complaint against the company. His claim must be dismissed.”