When offering employment, especially in the domestic sector, an offer/agreement is usually concluded verbally. In some cases a letter, either way could carry important obligations that many employers do not realise.
As has been mentioned earlier in Who is an Employee. Section 213 of the Labour Act states;
“(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…”
Although at face value the above may seem to imply that the responsibility of the employer only begins when your new staff member actually starts work, this is not always true. There have been several cases through the CCMA that have been challenged in a higher court where the employee status was found to be “employed”. This before they set foot in the employers door.
Often there may be an offer made and then for some reason, will be cancelled before the new employee arrives for their first day. For example, the employer is suddenly retrenched or has to move to another city for work, the reasons are endless. The important point here is how this agreement with the new employee is cancelled without repercussions. In some instances, the court found that merely offering employment could, in some cases be deemed full and binding employment. With this come’s all the expectations of the rights of an employee.
I will not go into all the crunchy details of how the courts reached this ruling except to say that if you are going to offer anyone, any form of employment, ensure the following is made loud and clear;
- Do not offer employment until you have worked out and written down all the terms and conditions that you require in your employment relationship. Ensure these conditions are in line with the Basic Conditions of Employment.
- Let a candidate for employment know upfront that any talk of employment or the terms of employment, in no way constitutes an offer.
If for any reason you are not sure what to do, rather contact us for advice, you can email [email protected].