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Having The Qualifications Doesn’t Mean Getting The Job

The longer I practice as an employment lawyer, the more I wonder about some of the claims which are litigated. Some people just seem determined to utilize the legal system to achieve a benefit they weren’t able to obtain on their own.

Employment lawyers (cursed, as we are, with the obligation to read court decisions with some regularity) marvel at some of the claims which are advanced. After all, litigation is not an inexpensive process and embarking on that path without a well-established form of claim is rarely a successful (or profitable) venture.

Nonetheless, novel claims occasionally pop up, resulting in decisions issued by our courts. A case in point emerged recently from B.C.’s Supreme Court.

The self-represented plaintiff, Roback, sued the University of British Columbia as a result of an advertised job vacancy for which he was not hired. The University had advertised for the position of assistant professor in its creative writing department. The advertisement listed certain preferred qualifications, including a particular university degree, and invited applications for the position.

Roback held the necessary qualifications and applied for the vacant position, but he was not hired for the job. Several years later, he discovered that the successful candidate had not possessed comparable qualifications. In fact, it seems the successful applicant did not have any post-secondary degree at all.

As a result, Roback sued the University, claiming that his contractual rights had been breached when the University failed to hire him. In effect, Roback was asserting that a contract was formed when he responded to the advertisement and that the University breached that contract by not hiring the best-qualified applicant for the job.

The Court had to determine the point in time when, as between potential employer and employee, contractual obligations commence. It dismissed Roback’s action, deciding that there was no basis for finding the existence of a contract, or any intention by the University to be legally bound, simply by publishing an advertisement.

The Court also found there were no grounds for an independent duty of fairness on the University’s part in considering applicants.

In arriving at its determination, the Court found that a critical element of the formation of a contract is the intention to create a contract. It decided it was very unlikely an employer, merely by publishing an advertisement, intends to create a contractual relationship with any particular applicant. Notably, the Court indicated that, by publishing an advertisement, an employer is not promising to hire anyone from the applications received.

This result confirms the reality that contractual relations between employer and employee don’t commence until an offer of employment is made and accepted. Until an offer capable of being accepted is advanced, the employer has no contractual obligations towards applicants.

Practically speaking, this is a very logical decision. Employers will always need to consider factors aside from qualifications in determining who will be the successful applicant. Work history, personality, career objectives, and overall suitability for the position are all equally important to educational qualifications.

That is not to say that the employer has no legal obligations towards applicants at all. Certain pre-hiring obligations are imposed by, for instance, human rights and employment standards legislation.

But, from a contractual perspective, the employer has a broad discretion to make the hiring selection it deems appropriate. I wouldn’t have thought that was a principle requiring confirmation from our courts. Apparently, Roback thought differently