Revoking an offer of employment – what is the risk?

The Basic Conditions of Employment Act defines an employee 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 other person who in any manner assist in carrying on or conducting the business of the employer”

The Labour Court and the Commission for Conciliation, Mediation and Arbitration (CCMA) however broadened the definition of an employee to also include job applicants.

An employment relationship commences as soon as an employee accepts the offer of employment.  The job applicant will then be regarded as an employee and can the employer not merely terminate the contract of employment.  The employee will be in a position to refer the revocation of the contract of employment to the CCMA as an unfair dismissal dispute.

Employers should caution against the revocation of contracts of employment.  If the employer discovers that the employee made a misrepresentation prior to the date on which the employer made an offer of employment, disciplinary steps should be followed.

Contact the LWO when you consider terminating any contract of employment to ensure the correct procedure is followed.

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