There may be confusion as to when the employment relationship between the employer and the employee actually commence. The confusion is more around whether the employment relationship is being established at the undersigning of the employment contract, the offer of employment made to the applicant or the appointment letter issued by the employer.
However, the question remains as to when this employment relationship actually commences.
The definition of an employee according to the Labour Relations Act (LRA) as well as the Basic Conditions of Employment Act (BCEA) is clear:
“(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.”
In the case of Wyeth SA (Pty) Ltd v Manqele the latter was appointed as a sales representative. The parties concluded a contract of employment in writing but the employer decided not to employ the employee anymore even before he physically commenced work.
The CCMA ruled that the employee had become an employee when he accepted the offer of employment from the employer. The matter was referred to the Labour Court by the employer and the Labour Court found that the employee had indeed become an employee with specific reference to the definition of an employee in terms of the LRA.
The decision by the CCMA and the Labour Court was concurred by the Labour Appeal Court.
However, in the case of Whitehead v Woolworths (Pty) Ltd (1999 20 ILJ 2133) it was founded that a party to an employment contract, who has not yet physically commenced work, is not an employee of the employer.
Common practise also entails that the employer makes an offer of employment to the successful candidate and he/ she must then, within a certain period of time, accept or reject the employer’s offer. If he/she accepts, the employer should issue an appointment letter – with or without a contract of employment.
It can concluded that the moment the candidate accepts the offer of employment by the employer, he/she becomes an employee and therefore an employment relationship commences regardless of the fact that the candidate has not yet physically commenced his/her duties and/ or have signed a contract of employment.
Employers should avoid terminating an employee’s service unilaterally before he/she commenced service and after he/she accepted the employer’s offer of employment.
ABOUT THE AUTHOR
Frikkie van Tonder obtained a BComm Law degree in 2009 from the University of the Free State. He was registered as a candidate attorney in 2010 with Vermaak & Dennis Attorneys in Bloemfontein. In 2011, he obtained a LLB)degree from the University of the Free State and completed his articles of clerkship in 2012. In April 2012, the author was admitted as an Attorney in die Free State High Court, Bloemfontein. After admission, he practised as an attorney for 2,5 years before joining SEESA Bloemfontein in June 2015 as a Labour legal advisor.