At the beginning of a new year, many individuals start new jobs or new positions wherein new employment contracts are often concluded. Alternatively, employment contracted are extended and/or amended.                         

For some inexplicable reasons, Employers often terminate employment contracts  prior to the commencement of employment by Employees with the belief that there will not be any legal repercussions.

From the outlook, it may seem like a person whose contract of employment is terminated prior to the commencement of employment is not protected by the provisions of the Labour Relations Act  66 of 1995 (LRA) and is not considered an Employee in terms of the LRA. Contrary to popular belief, there is no Labour Legislation that requires that an Employer must enter into a written agreement with an Employee in order for an employment relationship to exist.

Was an employment contract concluded?

The first issue is whether a contract of employment was concluded or not. In law the legal relationship between the parties may be gathered, inter alia, from a construction of the contract which they have or might have concluded. There has to be no doubt that the parties had concluded a contract of employment when the Employer reneged before the commencement date.

Therefore, in other words, the concluded and later terminated employment contract serves as a formality to prove a certain aspect such as limited duration, remuneration and further particulars.

Who is an Employee in terms of the LRA ?

From the Definition contained in Section 186 of the LRA, it is apparent that the Act envisaged a dismissal as also including cancellation of contract of employment. Furthermore, the definition of an “Employee” as defined in Section 213 of the LRA is exhaustive and according to Wyeth vs Manqele and Others, a party to valid and binding contract of employment even though he has not commenced with employment, has been defined as an “Employee” for the purposes of the Act.

Conclusion

If for some bizarre reason the Employer decides to terminate the contract of the Employee prior to commencement of employment, then there is conclusive evidence that an employment contract was entered int and the Employee will work for the Employer and be considered an Employee of the Employer.

The only exception is if the Employer can present a “just cause” (Incapacity to perform). Other than that, the conduct of the Employer may be deemed to be an automatic unfair dismissal and the Employee would be eligible to refer the matter to the CCMA.

For expert legal and Labour related advice, be at liberty to contact SchoemanLaw Inc and we will put you in contact with Professional Attorneys with years of experience in the Legal field to assist with your legal needs.

Written by Petrus Khumalo, Candidate Attorney, Schoeman Law