Can a Person who has not yet Commenced Work, be Dismissed?

“If you are brave enough to say goodbye, life will reward you with a new hello.” – Paulo Coelho

Introduction

MISA recently assisted a member who was offered an employment contract by the employer; the member signed the contract, he rendered his services to the employer for four hours, and was subsequently dismissed. Which prompted this article: what happens to a person who has entered into an employment contract but has not yet commenced work? Will that person be able to claim unfair dismissal?

In October 2021, MISA published an article titled “The importance of the Employment Contract or Letter of Appointment;” we recommend you take a look once you have an opportunity.  

Relying on Legislation for Guidance

In terms of section 213 of the Labour Relations Act 66 of 1995 (LRA), an employee is defined 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 person who in any manner assists in carrying on or conducting the business of an employer.

Moreover, according to the learned author, John Grogan: “At common law, a party to a contract of employment may sue for repudiation as soon as it is concluded; if the parties agree that the employee will commence work at some future date, the employee may claim damages for breach if the employer changes its mind and withdraws from the contract before that date arrives. This is known as an “anticipatory breach”.

Amongst legal scholars, there was some doubt as to whether employees who were victims of anticipatory breach, would be able to claim to have been dismissed within the meaning of the statutory definition of dismissal of section 213(a) of the LRA, as cited above.

However, the Labour Appeal Court (LAC) in the case of Wyeth SA (Pty) Ltd v Manqele & Others (2005) 26 ILJ 749 (LAC) has settled the debate.

In this case, the employer made a written offer of employment to Manqele on 14 March 2000 with the commencement date being 1 April 2000. This offer was accepted and signed by Manqele on 15 April 2000. One of the terms of the contract of employment was that the employer would provide Manqele with a company motor vehicle. Prior to 1 April 2000, the employer terminated the contract of employment with Manqele because the parties were unable to reach consensus as to the condition of the motor vehicle as stipulated in the letter of appointment. Manqele nevertheless reported for duty on 1 April 2000 and was advised by the HR that he would not be employed and that he should leave the premises. Manqele then referred an unfair dismissal dispute to the CCMA in terms of section 191(1) of the LRA.

At the arbitration, the employer raised a jurisdictional point contending that the CCMA lacked jurisdiction to deal with the matter because no employment relationship had come into existence between the employer and Manqele. The commissioner dismissed the point raised and found that Manqele became an employee the moment he accepted the offer of employment.

The Employer then took the matter on review to the Labour Court (LC). The LC dismissed the application with costs; finding that Manqele, as a party to a valid and binding contract of employment, is an “employee” for the purpose of a claim under the auspices of the LRA.

The Employer then took the matter on appeal to the Labour Appeal Court (LAC); and their main ground of appeal was that the LC had erred in finding that the definition of employee as contemplated in section 213 of the LRA includes a person who has entered into a contract of employment but has not commenced employment.  

The LAC indicated that the definition of “employee,” as it stands, creates uncertainty in the practice of Labour law. The court was therefore of the view that it was entitled to depart from a literal and ordinary construction, and extend the literal construction of the definition as to include a person who has concluded a contract of employment which is to commence at a future date.

The Learned Judge said that “common sense, justice and the values of the Constitution would in my view, best be served by extending the literal construction to include such a person. That interpretation will be in line with the meaning of “dismissal” in section 186 (1)(a) [of the LRA].”

The above matter further made mention of the Labour Court decision of Whitehead v Woolworths (1999) 20 ILJ 2133 (LC), whereby the court found that Whitehead could not claim to have been dismissed, as she was not an employee as defined in S213 of the LRA. The court said that “In the circumstances where an offer of employment is made to another and the offer 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 commences her performance or at least tenders’ performance in terms of the contract”.

This judgement was overruled on appeal to the LAC. The Whitehead case is distinguishable from the Wyeth case as the learned judge in the Wyeth case found that a contract of employment was indeed concluded.

In determining whether Manqele was an employee as per the definition in the LRA, the LAC considered the previous definitions of employee; foreign jurisprudence and domestic jurisprudence; and favoured a purposive interpretation of the definition to support an inclusive definition.

Conclusion

An employee who has concluded a contract of employment, where such contract has been terminated prior to the employee commencing work will have protection under the LRA for an unfair dismissal. However, remember that each case will have to be judged on its own merits; because if your actions contribute to the dismissal, you may not necessarily have a right to recourse.

MISA – Just a phone call or an e-mail away!

(Article by Joshua Nattar/Edited by Nichole Turner)

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