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When does a job applicant become an employee?

Ivan Israelstam

You can be an employee before you start work!

Section 6 of the Employment Equity Act (EEA) prohibits employers from unfairly discriminating against applicants for employment. In other words, a prospective employer may not turn down a job candidate's application for arbitrary reasons, such as age, gender, race and disability. Disqualifying job applicants must be done on objective grounds relating to the job's operational requirements, such as necessary qualifications and experience.

While the statutes are pretty clear, these don't deal with the situation where a job applicant has been offered the job but, before starting work, is told that he no longer has the job. This is a serious gap in the legislation as a job applicant may have resigned from his old job when he received the new job offer. On hearing that it's no longer his, he will have his livelihood taken away from him.

Neither the Basic Conditions of Employment Act (BCEA), the EEA nor the Labour Relations Act (LRA) shed any light on a remedy for a person who finds himself in this situation. Historically, the view has been that one isn't an employee until you start working and can't use the labour dispute resolution system to take the employer to task.

This falls in the realm of employment contracts

When an employer offers a position to an applicant and he accepts, a contract has been concluded. Such a contract is legally binding. If the employer then refuses to let the employee start working, the employer is in breach of contract and may be sued in civil court.

There is little dispute as to the employee's theoretical right to sue the employer and the employee has a very good chance of succeeding with the suit if he can prove the contract was breached. However, in practice:

  • Many employees don't have the substantial resources necessary to fight such a case in civil court, and
  • It could take years for the employee to get his/her pound of flesh if the case goes ahead.

It is for this reason that Labour Court judges and CCMA arbitrators have more recently become willing to broaden their view of what constitutes an employee.

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 seems to make it clear that a person only gains 'employee' status when he begins working for the employer. The definition strongly implies that the employer's legal obligations begin on the day that the employee actually begins work.

This interpretation was applied in the case of Whitehead vs Woolworths (Pty) Ltd (1999 20 ILJ 2133). In that case, the court found that:

  • A person who is party to an employment contract, but who hasn't yet commenced employment, isn't an employee for the purposes of the LRA.

However, other courts appear to have ignored the legislation. For example, in the case of Wyeth SA (Pty) Ltd vs Manqele (People Dynamics, September 2003 page 39) the Labour Court found that, as a party to a valid contract of employment, Manqele was an employee - for the purposes of the LRA - even though hadn't yet started work when the employer revoked the contract.

In the recent case of Greyvenstein vs Iliso Consulting Engineers (2004 3 BALR 330):

  • The employer had set the requirement that job applicants should be able to type 60 words per minute.
  • Despite the fact that the applicant, Greyvenstein, failed the test, the employer told her that she would be appointed on a probationary basis.
  • However, before the employee could start work, the employer revoked the agreement and refused to give her the job.

The CCMA decided that:

  • A valid and binding contract had been concluded as soon as the employee had accepted the offer of probationary employment.
  • Greyvenstein had become an employee the moment this contract had been concluded.
  • The employer's revocation of the contract constituted an unfair dismissal.

This means that employers need to be very cautious when offering jobs to applicants. Such offers shouldn't be made before the employer is 100% certain that it wants to employ the applicant.