“If I can’t get a work visa, can an employer withdraw a job offer?”

Question: I signed a job offer to start a job in a few weeks. The company then withdrew the contract after we both signed due to the fact that they cannot get a working visa for me. The visa was not part of the contractual agreement. They now want a French-speaking person, which was not a part of my signed contractual agreement, either.  

Patrys
Burkina Faso

[Note to Readers: Burkina Faso is a country in Western Africa formerly known as “Republic of Upper Volta.” It is surrounded by six countries: Mali to the north, Niger to the east, Benin to the southeast, Togo and Ghana to the south, and Cote d’Ivoire to the southwest. It has a population of approximately 16 million. In Moore’ and Dioula, its major native languages, Burkina Faso means “The Land of People of Integrity.”]

Answer: Dear Patrys,         

To date we have been visited by readers from 190 countries, but to my knowledge, you are our first person to submit a question from your country. Thank you for writing in. As I’m sure you know, I am not licensed to practice law in Burkina Faso. However, my experience over many years is that certain elements of the law are quite common, and for one reason: they come from common experience and constitute common sense.  

Here’s the analysis I suggest:        

1. A contract has both “expressed” terms and conditions, and other “implied” ones, too. You are 100% correct to look carefully at what is expressed in your contract, and to look, too, at what is not expressed. However, every contract has certain terms and conditions that are implied within it, by law. That is because not everything can be set down in a contract, and some things simply must be “assumed” by both sides.

So, if a fisherman had a contract to sell fish to a restaurant, it would be assumed, and implied into the contract – even if it was not written in the contract – that the fish would not be rotten, or poisonous, or otherwise inedible. It would also be assumed, and implied in the contract – even if it was not written in the contract – that if a boat sank in a storm, and the fisherman drowned, he would not have to provide the fish. We can’t think of everything, and can’t list everything, in a contract, so the law permits certain “basics” to be implied, with the same effect as if it was written.   

However, if the contract provides for a penalty, then the penalty is effective. So, if the fisherman’s boat sinks, and the contract says, “No matter what, if no fish are delivered, for any reason, the fisherman must pay $100 as a penalty,” then the penalty is effective.

2. If an “expressed” provision or an “implied” provision or condition becomes “impossible,” then the contract, itself, often becomes “impossible.” (Lawyers call this “impossibility of performance.”) Sometimes, due to no fault of either party, the performance of one of the two parties – or even both of them – becomes simply impossible to provide. When this happens, the law in most places “forgives” that party from having to perform what he or she promised to perform. This “impossibility of performance” is a condition implied into nearly every contract.

So, if a ballerina promises to dance at a concert hall, but two days before she falls down and breaks both her legs, she is “excused” from her promise to dance that night due to “impossibility of performance.”

It’s the same thing for the owner of the concert hall: if the concert hall is struck by lightening, and burns to the ground, it does not have to put on a show for the ballerina, due to “impossibility of performance.”

Of course, if the contract provides for a penalty payment if either side does not perform, for any reason, then the penalty is effective.

3. Assuming the employer tried to get you a work visa, and could not, then I think that would constitute “impossibility of performance,” and excuse it from hiring you. If the company tried in good faith to get you a work visa, but was unable to do so, I would see this as an excusable “impossibility of performance.” It would be very difficult for you to determine that, but without some sort of showing that they did not try to get you a visa, there is nothing you can do, at least under the law of most countries.

4. Just as you are free to seek better pay from your next job, your almost-employer is free to seek a French-speaking person in its next person to hire. Regarding your second issue, there’s really nothing wrong with your employer deciding to seek a person who can speak French when it tries to fill the position in the future. It’s just like you seeking better pay from your next employer. It does not seem at all relevant to me.

5. All that said, you might send a respectful letter requesting some fee for your lost time. With nothing to lose, and everything to gain, don’t forget that the company might just be willing to pay you a few weeks, or even a few months pay, though it does not seem legally required to do so.

Job offer accepted, then withdrawn, leaving you in a bind? Consider our Model Letter entitled “Job Offer Accepted, Then Withdrawn – Requesting Payment of Losses.” Shows you “What to Say, and How to Say It.”™ To obtain your copy, [click here.] Delivered by Email – Instantly!

I’m sorry, Patrys, if this is disappointing, or even unfair. I will say that, while the law in Burkina Faso may be different, this is the law in most countries. You might consider seeking a consultation with a local attorney, but my honest expectation is that he or she will confirm how I see the situation.

Thank you so much for writing in. I hope and pray you find new work and an employer who values your work in the near future.

And I hope, too, that you will tell others in Burkina Faso about our blogsite.  

Best,
Al Sklover

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