Can an Employer Withdraw a Job Offer in Australia? Before and After You Accept

Short answer: before you accept, generally yes. After you accept, it's a contract, and pulling out can be a breach of it. Either way, an employer can never withdraw an offer for a discriminatory or other prohibited reason.

The general protections in Part 3-1 of the Fair Work Act cover prospective employees. Under s 342 (table item 2), a prospective employer takes adverse action if it refuses to employ you, or discriminates against you in the terms it offers. That action is unlawful if it's taken because of:

• a protected attribute (s 351), such as race, sex, age, pregnancy, disability, family or carer's responsibilities, religion or political opinion, or
• a workplace right (s 340), such as asking about your award pay or entitlements.

So an offer pulled after you mention a pregnancy, a disability or a need for flexible hours raises a real question. Federal and state anti-discrimination laws can apply too. A general protections claim that doesn't involve a dismissal can be taken to court within 6 years, though acting quickly is far better. See Fair Work Ombudsman, Protection from discrimination at work.

Misleading statements in recruitment are also covered. Australian Consumer Law s 31 prohibits misleading conduct about the availability, nature, terms or conditions of employment.

Once you've accepted an unconditional offer, a contract exists, even if you haven't signed anything or started work. If the employer then refuses to go ahead, the usual claim is breach of contract. The measure is normally what you would have received had the contract been ended lawfully. That's typically the notice period in the contract, or the probation notice if it has one. Courts have been reluctant to award lost wages for a long period, because most employment contracts can be ended on notice.

Unfair dismissal is usually not available: you haven't served the minimum employment period (6 months, or 12 months for a small business). A general protections claim is available if the reason was a prohibited one.

What to do:

1. Ask for the reason in writing.
2. Keep the offer, your acceptance and any messages about start dates.
3. If you resigned elsewhere, ask your old employer whether you can withdraw your resignation. They don't have to agree, but many will.
4. Write to the employer setting out your acceptance and the notice you say you're owed. Our final pay request letter is a starting template.
5. If the reason looks discriminatory, get advice quickly.

• Make offers conditional on what you actually need: reference and police checks, work rights, licences. Say the offer lapses if a condition isn't met.
• Withdraw before acceptance where you can, and tell the candidate promptly in writing.
• After acceptance, treat it as ending a contract. Pay the contractual notice (or at least the probation notice) rather than simply going silent.
• Never let the reason touch a protected attribute or a workplace right. Record the real business reason at the time.