Withdrawing an Employment Offer Before the Start Date: What Employers Need to Know

At first glance, withdrawing a job offer before the employee has even started might seem legally straightforward. However, under South African labour law, this issue is far more complex than many employers/employees may realise. A recent review of relevant legislation and case law highlights the legal risks involved and the potential liability for employers who attempt to “withdraw” an accepted offer of employment.

Can a Job Offer Be Withdrawn After Acceptance?

The law does not explicitly address the withdrawal of employment offers prior to the employee’s actual commencement date. Moreover, the statutory definition of an “employee” does not extend to someone who has not yet begun working. This ambiguity forces us to turn to case law for guidance.

One of the key questions in such situations is: Has the prospective employee already become an "employee" in the eyes of the law?

The CCMA laid down three key criteria to determine whether an employment relationship has been established:

1. Intention to Create Legal Relations: Did both parties intend to enter into a binding legal relationship?

2. Offer and Acceptance: Was there a clear offer made and accepted?

3. Contractual Requirements Met: Were all material terms agreed upon, in line with the laws of contract?

   
   

In many instances—such as when an offer has been accepted via email and the key terms have been agreed to—these conditions will be satisfied. Even if some details remain unresolved, the courts may still find that an employment relationship has been created.

Is It Still Just a Withdrawal — or a Dismissal?

The Labour Court has addressed this very issue. The Court found that once an employment contract is established—even if the employee hasn't yet started working—withdrawal of the offer after acceptance is no longer a mere “withdrawal.” It is legally considered a termination of employment.

This shifts the conversation from whether the employer can withdraw an offer, to whether they can legally terminate the employment relationship before it has begun.

Is the Termination Fair?

Having determined that a withdrawal is in fact a dismissal, we now turn to whether such a dismissal is substantively and procedurally fair. Fair dismissal before commencement of employment is an exception, not the rule. Common grounds accepted by our courts include:

• Conditional Offers: Where the offer was clearly made subject to conditions such as background checks, qualification verification, or reference checks.

• Operational Requirements: For example, budget constraints or structural changes, which would fall under retrenchment provisions (applying the “Last In, First Out” principle).

• Misrepresentation: If the prospective employee has falsified qualifications or work experience.

  
  

Absent such grounds, employers face a real risk that the termination could be found unfair, exposing them to liability under the law.

Final Thoughts

Employers should tread carefully when considering the withdrawal of an accepted job offer. Even if the employee has not yet begun work, the courts may find that a binding employment relationship exists—meaning the withdrawal could constitute a dismissal. Unless there are valid, fair, and well-documented reasons for the termination, the employer may find themselves at the receiving end of a legal dispute.

Need Legal Guidance?

Our employment law team advises both employers and employees on the nuances of job offers, contracts, and dismissals.