After a successful job interview, our reader was offered a position with a company and he subsequently signed a contract of employment.

He gave notice at his current job after accepting the offer. However, before starting in the new position, he was informed that his services were no longer required.

The reader would like to know whether this is fair and what his rights are.

Once an employer has agreed that an employee will commence work on a future date, a binding contract exists. Under our common law, a person who has been promised employment (valid contract) may sue the employer for damages if he breaks the contract.

The question arising from our reader’s case is whether he can claim to be an employee who has been unfairly dismissed.

Section 213 of the Labour Relations Act (LRA) defines an employee as: “. . . 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 any other person who in any manner assists in carrying on or conducting the business of an employer.”

In a case with similar facts to our reader’s, Whitehead vs Woolworths (Pty) Ltd, it was held that a person is only an employee when such a person actually works for another person.

It was held that where an offer of employment is accepted, a contract of employment may come into existence, but the parties to that contract do not enjoy the protection of the act until such time as the offeree actually starts working.

In this case the Labour Court held that the applicant could not claim to have been dismissed within the statutory meaning of the term, because at the time when the company withdrew from the contract she was not an “employee” as stipulated by the act.

However, in Wyeth SA (Pty) Ltd vs Manqele and others, the Labour Court disagreed with the Woolworths judgment. In this instance, the court remarked that to confine the term “work” to work that is actually being performed, is justified by neither the wording of the definition nor the purpose of the statute.

The court held that the term “employee” can also extend to a person who is contracted to work. This interpretation was upheld on appeal.

According to the court, all the statutory definition requires is a valid contract of employment and a termination of that contract by the employer.

Therefore, if a valid, binding contract of employment existed between our reader and the employer who offered him the position, our reader will be able to refer an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) for adjudication.

The date on which the dispute arose is extremely important, as a dispute has to be referred to the CCMA within 30 days of an employee being dismissed or within 30 days of the employee becoming aware of being dismissed.

If the reader is successful with this dispute and proves an unfair dismissal, he will be entitled to compensation.

Section 194(1), which deals with compensation limits, states that the compensation awarded to an employee whose dismissal is found to be unfair, needs to be just and equitable in all circumstances.

However, it may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.

Send your labour and other workplace related questions to

Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.

Issued by:

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Wikus van Rensburg Attorneys