The South-African Labour law does not deal with the situation where an applicant was offered a specific position or employment opportunity by an Employer of which the offer was accepted, but only to be taken away before the commencement date or undersigning of the official Contract of Employment.
Does the offer of employment constitute a legally binding contract, and will this piece of paper be worth its weight in gold if one wishes to take it to the altars of Justice?
In short, yes, any type of Offer of Employment that both parties accepted will be a binding contract that promises the opportunity or prospective certainty of employment for a specific amount of remuneration. This document will also have a date that will indicate the commencement date of employment.
One will notice the employee/employer relationship elements inside such document.
The only thing that can be of some uncertainty is the definition. According to Section 213 of the LRA, an employee is:
- Any person, excluding an independent contractor, who works for another person or the state and who received, or is entitled to receive, any remuneration, and
- Any person who in any manner assist in carrying out to conducting the business of an employer.
It is clear from section 213 that an employee is one that commenced employment. Still, if one considers the following case law, one will notice the approach of both the CCMA and Labour Court in terms of the interpretation of this section and definition.
In the matter between Greyvenstein v Iliso Consulting Engineers (2004 BALR 330), the employer revoked the offer of employment before the commencement date thereof, where after the employee referred the matter to the CCMA and the outcome was as follow:
- A valid and binding contract has been concluded as soon as the employee accepts the offer of employment, verbally or contractually.
Another court case was faced with the above question in the matter of Wyeth SA(PTY) Ltd v Manqele and others (2005, 6 BLLR 523).
In conclusion, it seems clear that an offer of employment, even if it’s accepted verbally, does constitute a legally binding employment contract.
An offer of employment accepted by an employee/applicant and later on revoked by the employer will constitute unfair dismissl and does not limit the employee’s civil litigation remedies if a breach of contract can be proven.
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About the Author:
Riaan Conrad Conradie is a Consumer Protection & POPI and Labour Legal Advisor at SEESA’s Upington branch. He obtained his LL. B degree at the University of the Free State and joined SEESA after 3 years in the Civil Litigation arena as a Candidate Attorney and Cost Consultant.
Resources:
- Wyeth SA(PTY) Ltd v Manqele and others (2005, 6 BLLR 523);
- Greyvenstein v iliso Consulting Engineers (2004 BALR 330);
- The Labour Relations Act 66 of 1995.
