Historically, the view was that one is not an employee until he/she starts working and can therefore not use the labour dispute resolution system to take the employer to task.
However, Labour Court Judges and CCMA arbitrators have more recently broadened their view of what constitutes an employee to include job applicants.
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 the status of ‘employee’ when he she begins working for the employer. That is, the definition strongly implies that the employer’s legal obligations begin on the day that the employee physically 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, according to the report, that a person who is party to a contract of employment but who has not yet commenced employment is not an employee for the purposes of the LRA.
However, the courts appear, in recent months, 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 and binding contract of employment, Manqele was an employee for the purposes of the LRA even though he had not 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 applicants for the post should be able to type at 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 for purposes of labour law the moment this contract had been concluded, and
- 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 should not be made before the employer is certain that it is 100% willing to employ the applicant.