Conditional Offers of Employment

A recent decision involving Fire and Emergency New Zealand has explored the area of “Conditional Offers of Employment”.

In KNN v Fire and Emergency New Zealand [2025] an appointment was made conditionally pursuant to the Fire and Emergency Act 2017 (the FENZ Act). A completed review in their favour was required for the employment to become unconditional. This essentially mirrors the Public Service Act 2020.

The Public Service Act 2020 provides (s.72) appointments are on merit (preference to person best suited to the position) and (s.71) that appointments … are provisional pending the outcome of a review …

However, this case also has relevance for employers who are waiting for such things as criminal background checks to come through.

In this case the employee started work before the review had been completed. They argued (unsuccessfully) that the conditional offer was waived by allowing the employee to start work before the condition was met. The employee’s appointment was cancelled and re-advertised.

The Employment Court held that as an employee, they were entitled to raise a personal grievance. Consideration would need to be had as to whether the employer acted as a fair and reasonable employer in the circumstances. The review process undertaken would inform this assessment.

Where a provisional appointee has not yet commenced, they are not an employee; they do not fall within the extended definition of employee, which includes “a person intending to work.”

If a conditional appointment was withdrawn prior to starting work, the provisional appointee would not be able to bring a personal grievance.

Court observed:

“Once a person commences employment, they are an employee, and the Employment Relations Act applies to their employment. This includes … termination … giv[ing] rise to the right to bring a personal grievance.” And “… it would be open to the Authority or Court to find the decision to withdraw the appointment and terminate the employee’s employment was not one that was open to a fair and reasonable employer in the circumstances. That exercise would be a limited one, the Court and Authority could be expected to generally defer to the views of [the employer] as to whether the appointment should be confirmed or cancelled, but nevertheless, could determine that the decisions were not ones that a reasonable person could have made in the circumstances.”

Summary:

If your Company is wanting protection of a conditional offer, it is preferable not to start the person. However, you may still invoke the conditions if they do. If starting an employee before conditions have been met, it will be prudent to clarify in writing before they start, that the appointment is conditional and may potentially be terminated if the conditions are not met.