Starting a new job is always exciting, offering countless opportunities and connections. But what happens if an individual signs an employment contract, and their employer terminates an employee before their first day?
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Can you be terminated before your first day?
Rescinding the employment contract before it starts taking effect, i.e. when the employee actually starts the job, is an employer breaching their legal obligations. As a contract is a legally binding agreement, the employee can take legal action against you. This is important in circumstances where an individual has sacrificed lots of time and money in order to start their new job. They would be able to sue for breach and recover any losses they have suffered as a result of an employer’s breach.
Additionally, where an employee faces unfair dismissal, they can apply to the Fair Work Commission for possible solutions. However, the employee can only fill out this application where they have completed a minimum time of employment. In small businesses with less than 15 people, they must have completed at least 1 year. In larger businesses with more than 15 people, they must have completed 6 months. Therefore, as employees before their first day do not fulfil this working time criteria, they cannot apply to the Fair Work Commission.
However, termination of employees before they start a job is usually due to a person failing a pre-employment check. A pre-employment screening is the verification of the employee’s identity and credentials. It is to ensure that they have not lied on their resume, or have a criminal background which relates to the work they are applying for. As a pre-employment check is a necessary part of the job interview, the employer can terminate a potential employee.
After you start
Employees usually commence a job on a 3 or 6 month period of probation. During your probation period, your employer can terminate you on short notice (i.e. one week). If you have already started your role, your new employer may terminate you with little notice or immediately if there is misconduct.
Termination without remedies
It is legal to terminate an employee without notice in some situations before a potential employee starts the job. In these circumstances, there are no remedies available for the employees.
1. If they commit serious misconduct
If they commit serious misconduct prior to the job, their termination can be completed without prior notice. This can include conduct such as bullying or harassment of fellow employees. This involves breaching the company code of conduct.
2. Lying on their resume
An employee can be fired if they lied on their resume. For example, if you are hired for a nursing position but have provided a fake nursing degree, you can be fired. In this case, this person has committed fraud and the company can fire them immediately, with no notice. Furthermore, there are no options for compensation following this termination.
It is important to know your rights if you are facing dismissal before you start a new job. If you have any further questions about dismissal of employees, you can contact an employment lawyer.
