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THE QUESTION
I’ve been eager to leave my current company where there isn’t any room for growth. I have been looking for a job for the better part of a year and I finally landed a role that I’m excited about. However, the job offer says that the company has the right to cancel the offer before the start date, which is right around the corner. This seems unfair because I have to give my current company two weeks’ notice. Is this common for companies to include in a job offer? Do you think it’s worth the risk to accept this new job?
THE FIRST ANSWER
Joshua Lerner, employment lawyer, Lerners LLP, Toronto and London, Ont.
Your concern is understandable. A clause like this can feel as though it undermines the whole point of signing a contract.
An employer is generally free to withdraw an offer before you accept it. But once you accept, you and the employer have a binding agreement, even if you haven’t started work. If the employer cancels at that stage, it is treated as a termination of employment. That means you would usually be entitled to notice or termination pay under employment standards legislation, and possibly more at common law.
Because the law requires employers to provide at least minimum notice or termination pay, clauses that purport to allow cancellation without consequence are unusual and often invalid. Courts also scrutinize employment contracts carefully, given the imbalance of power between employers and employees, and will strike down provisions that don’t meet legal standards. If a cancellation clause is unenforceable, you may be entitled to reasonable notice, which is typically more generous than contractual notice. And if you quit your previous job because you relied on the new offer, damages could be higher, particularly if the employer encouraged that move.
It’s a different story if the offer is conditional on something, such as passing a background or reference check. Even after acceptance, an employer may withdraw if a genuine condition is not met.
Whether it’s worth the risk depends on your circumstances. In practice, most employers don’t invoke these clauses once they’ve gone through a full hiring process, and the law makes it difficult to do so arbitrarily. Still, you are right to be cautious. You could ask the employer to remove the clause, narrow it so it can’t be used in the two weeks before your start date, or guarantee some compensation if it happens. Their response will give you a sense of how they treat employees, before you even step through the door.
THE SECOND ANSWER
Nadini Dukhu, HR and investigations lead, MaxPeople HR, Markham, Ont.
The initial issue to determine is if this is standard language in their employment offer or if the language is precipitated by other events within the company, such as a shortage of funds or organizational restructure. Because the decision to leave your current company is a critical one, it’s important that you make an informed decision. I would suggest contacting the company with a probing question such as, “I noticed [X clause] in the job offer, could you share the thinking behind including that?”
If the language is standard, you may have flexibility to negotiate its removal or to suggest a creative amendment, such as your entitlement to a one-time payment if that clause comes into effect.
If the language in the agreement is non-standard, not removable or not subject to modification, take a moment to clarify why. Do you understand the company’s reasons for not making changes and, if so, do those reasons make sense to you?
If you don’t know why, consider whether you’re still comfortable moving forward without that clarity. From there, revisit your reasons for wanting to leave your current role and weigh them against the potential benefits of the new opportunity. Ask yourself whether the uncertainty outweighs the advantages, such as alignment with your values, the scope of the role, the compensation being offered and the potential development opportunities.
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