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When does one become an employee
Advocate Diamond Tapiwa Chadya of MIWUSA

When does one become an employee

March 06 2017 – Dear Miwusa,

I am a lecturer at a private college. I mean, I was a lecturer and I was interviewed and offered a lecturing job at a local University. I signed the contract and it was five times more than what I was earning at the college. I resigned and served my notice. I relocated to a more expensive place, but closer to the local university. A week before the academic year started, I received an email stating that my post has been frozen, and my job is no more. My name is Kabamba from RD Congo. I am a permanent resident. I am very good in lecturing Macro-Economics. I have a PhD in Economics from Harvard University.

I have now lost both jobs.

I read your article about Steve a few  weeks ago but  I am not a member of Miwusa, but I would like to join the union.

Please help me.

Regards

Kabamba

Dear Kabamba,

Your matter is very sad indeed and a lot of people have been faced with the same predicament. The important question that we have to answer is when does one become an employee?

Unfortunately the South African labour law legislation does not deal with a scenario where a job applicant is offered a job but, before commencement, is told that he no longer got the job.

This is a huge policy gap and is very unfair to you as the job applicant as you have already resigned from your old job upon receiving the news of the new job offer. The sad part is that you have no current source of income as you have now lost on both jobs.

Not even the Constitution; neither the Basic Conditions of Employment Act (BCEA) nor the Labour Relations Act speaks to such unfortunate circumstances that you are facing. The norm has always been that you are not an employee up until you sweat, up until you render your services by working. This then means that as a union, we are not able to rely on the labour dispute resolution mechanisms to take the employer head on. How unfortunate!

Kabamba your only right of recourse is found in the law of contract. Since there was a contractual offer from the local university that you accepted, this entails that there was a valid contract. The contract that you signed is legally binding. Even if the contract was verbal, it would still be a legal and binding contract. A contract doesn’t necessarily has to be written for it to be binding.

This means that by refusing you to start work, the employer is in an automatic breach of a contract. The employer can, and must be sued in a civil court of law.

Kabamba you have high prospects of success with your legal suit against the local university. What we just need to prove is that the university is in breach of a contract, which they infact are.

Since you said that you are currently unemployed, such lack of resources has always been the limitation for many employees with credible and winnable cases against the employer in court. A civil suit doesn’t take a day to resolve, sometimes they take years to resolve.

With this unfavorable momentum on the employee, the Labour Court judges and the CCMA arbitrators have thus broadened the definition of the employee according to section 213 of the LRA. The section reads that an employee is:

  • Any person, excluding an independent contractor, who works for another person or the state and who receives, or is entitled to receive any remuneration; and
  • Any other person who in any manner assists in carrying out or conducting the business of an employer;

Such definition entails that the employer employee relationship only exists the time when an employee starts physically working for the employer. Before one works, there are no legal obligations of employer employee.

In an attempt to bridge in the policy gap, the case of Greyvenstein vs IIiso Consulting Engineers (2004 3 BALR 330) the courts applied a wider approach interpretation of the law. In this matter, the employer has set the minimum requirements of getting a job as the ability to type 60 words per minute. Despite failing to do so, Greyvenstein was offered the job on a probationary basis. However as similar to your case Kabamba, before she could start, the employer revoked the agreement and refused to give her the job.

In this case the CCMA decided that:

  • A valid contract had been concluded as soon as the employee accepted the offer of probationary employment
  • She was an employee for the purposes of labour law the moment the contract was concluded
  • The employer’s revocation of the offer of employment constituted an unfair dismissal.

In the case of Wyeth SA (PTY) Ltd vs Manqele and Others (2005, 6 BLLR 523), Manqele signed a contract of employment. They however had a dispute before Manqele could start work. It was with regards to a company vehicle that he would use. As a result, the employer terminated the employment contract based on the disagreement on the company car. Manqele took the company to the CCMA.

The employer raised the jurisdiction issue arguing that Manqele had not rendered his services hence he was not an employee. However the CCMA and the Labour Court were dismissed the employer’s arguments. Upon appeal at the Labour Court, the court rejected the narrow interpretation of section 213 of the LRA and widened the meaning of the employee to cover even those who had not rendered their services, but had a verbal or a written contract.

So in conclusion, Kabamba the above matters cement the position that you don’t need to have worked before you are regarded and offered protection as an employee. You are an employee of the local university. You have high prospects of success in your matter. Please approach the CCMA as it has jurisdiction to deal with your matter.

Since you are not a member of Miwusa, all we can do is to offer you legal advice as a migrant. We hope that you will join the union soon.

For more information about MIWUSA and your rights as a migrant worker, Contact: Advocate Chadya Tapiwa Diamond a MIWUSA Legal Specialist, a former student leader, who read law and Trade Unionism at the University of KwaZulu Natal and the University of Witwatersrand,  Call or WhatsApp  to 27 (0)84 566 2756 or 27(0)81 518 5880,  or  email him at diamondtapiwa@gmail.com, Twitter @mantronieqscie or LIKE  Tapiwa Diamond Chadya on Facebook. He writes in his own personal capacity.

DISCLAIMER: The views expressed in this article are the personal views of the writer and donot in any way reflect www.ZimsInSA.com’s opinion or editorial policy.Niether does the website accept liability for the information in this article.

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