Employment can begin before you start work

  • October 31st, 2016

EMPLOYMENT CAN BEGIN BEFORE YOU START WORK

 

BY  lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Web Address: www.labourlawadvice.co.za.

 

 

Case law decisions confirm that employers must beware of concluding employment contracts that they are unable or unwilling to implement. That is, the employee is protected by labour law from the moment the employment contract is concluded whether in writing or orally.

 

According to section 213 of the LRA an employee is:

“(a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists in carrying out or conducting the business of an employer…”

 

This definition indicates that, in order to be an employee, a person must actually be working. However, in the case of Wyeth vs Manqele (People Dynamics, September 2003 page 39) the CCMA ruled that Manqele had become an employee the moment he accepted Wyeth’s offer of employment. Wyeth took the arbitrator on review where thee Labour Court found that, as a party to a valid and binding contract of employment, Manqele was an employee for the purposes of the LRA.

 

The Labour Appeal Court (In Wyeth SA (Pty) Ltd vs Manqele & others 2005, 6 BLLR 523) upheld this decision despite an earlier court decision to the effect that a person only becomes an employee once they start work (See Whitehead vs Woolworths (Pty) Ltd (1999 20 ILJ 2133).

 

This finding poses serious concern for employers:

 

  • Firstly, the fact that two different Courts in two different cases (Woolworths on the one hand and Wyeth on the other) made two such diametrically opposed decisions on a matter as fundamental as this one creates major uncertainty as regards the law.
  • Secondly, where the parties have agreed in principle that the employee will get the job it is now not clear whether a disagreement on the terms of the employment does or does not delay the legal validity of the contract of employment.In the light of these dangers employers should:
  • Avoid entering into employment agreements until all the terms and conditions have been dealt with thoroughly
  • Make it clear that the discussion of the terms and conditions of a contract in no way constitutes an offer of employment.
  • Never employ, contract with or cancel the employment contract of any person without involving a labour law expert experienced in dealing with these tricky issues.

 

To attend our 17 November 2016 case law update seminar on NEW CHANGES AND DANGERS IN LABOUR LAW (Part 2) please contact Ronni on ronni@labourlawadvice.co.za or 0845217492.