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Thread: Promise of employment and then "sorry for you"

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    Question Promise of employment and then "sorry for you"

    Good day

    I would like to find out if I have a Case for the CCMA or not.
    What happened:
    I went for an interview with the head of a new branch of a large cement producer in South Africa.
    The interview went well and then the company set up an appointment for me to go for tests at an institute the following day.
    The results came back and I was told that according to the test, I can definitely do the job.
    The Head of the new division said that he instructed the HR department to draw up a 2 year contract and that all that remains is for me to accept the offer and that I should keep the following Friday open to start working and help them with the setup of the new division.
    The following day I phoned the HR department to en-quire if they have finished with the contract seeing as we were pressed for time and I would have liked to give a couple of days notice at my current employer.
    The HR department was on a course that day.
    I informed the head of the new division of this and he said that he would sort it out and that HR should understand how urgent this was.
    The following day I was informed by HR that they have been instructed to draw up the contract and the offer, however they just have to meet with the head of the new division first.
    Then it was the Friday which I should have started at the company and after HR meat with the head of the new division, they contacted me and said that they were not happy with the fact that the head of the new division did not include them from the beginning and they wanted to have another interview with me on the following Monday.
    I went for the interview on the Monday and they reiterated that they were not happy with the fact that they were excluded in the process and they were not happy that I phoned them to find out when the contract would be finished.
    However I still went through the interview with them and then I was copied in an email to the recruitment agency that they have decided not to go ahead with my appointment.

    In my opinion, they decided to prove a point to the head of the new division by refusing to appoint me.
    The 2 year contract would have been to the value of R 1,008,000.00

    Thank you for taking the time to read this far.

  2. #2
    Moderator IanF's Avatar
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    With a user name of HP10bii I assume you are an accountant.

    It looks like there is politics in this so I would get the Head of the New Division to sort this out, if he really needs you he should be able to get this approved.
    I can not answer about a possible claim. But rather approach it from a POV of wanting the job instead of suing them for breach of promise.
    Only stress when you can change the outcome!

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    Hi Ian

    Thanks for the reply, however the HR department stated on the day that they informed the recruitment agency of not going ahead that they have appointed another candidate which came for an interview with them on that day. I can only speculate that it was a contact of someone at the HR department, who could bypass the testing phase of the interview as well.
    When I spoke to the Head of the new Division he stated that "these things happen" and that his hands were tied.

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    Diamond Member adrianh's Avatar
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    I thought that an employment contract is only valid once both parties have signed the contract?

    I think that if you go on "he said she said" that you will lose!
    How easily someone is offended is directly proportional to how stupid they are.
    ~GS Elevator

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    Hi Adrian

    I do have an email from the Head of the new division where he confirms that the contract would be sent to him the day before he had his meeting with HR.

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    Just put it down to bad luck. Nothing signed= No contract. in my opinion (unschooled) you have a very slim chance of winning any legal battle to reverse what has occurred or payment of any monetary compensation in lieu of your non-appointment.

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    Diamond Member adrianh's Avatar
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    I can't see you winning. The company can simply say that he did not have the authority to make such a statement.
    How easily someone is offended is directly proportional to how stupid they are.
    ~GS Elevator

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    Diamond Member Vanash Naick's Avatar
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    A very good evening to you HP10bii,

    Then it was the Friday which I should have started at the company and after HR meat with the head of the new division, they contacted me and said that they were not happy with the fact that the head of the new division did not include them from the beginning and they wanted to have another interview with me on the following Monday.
    I went for the interview on the Monday and they reiterated that they were not happy with the fact that they were excluded in the process and they were not happy that I phoned them to find out when the contract would be finished.


    Though this may be a long shot, or a shot in the dark, it is a possible avenue for you given the actual surrounding circumstances.

    Let me explain: I would suggest that your course of action involves the Employment Equity Act 55 of 1998(as amended)

    1. For precise statutory interpretation, one will have to read certain sections in conjunction with others.
    2. I would like to take this opportunity to clarify a commonly held misconception, namely, that the list of elements of discrimination in section 6(1) is a non-exhaustive list of 19 grounds of discrimination, now non-exhaustive simply means that discrimination is not confined or limited to the list of 19 grounds in s 6(1)[Case-law confirms this],
    3. You as an applicant for employment would therefore have an unspecified ground. The court will then utilise the concept of dignity to firstly establish whether your unspecified ground does have potential to be classified as an unspecified ground for discrimination,[This would be your problem and challenge]. You may want to research Harksen v Lane NO 1998(1) SA 300(CC) and Larbi-Odam v Members of the Executive Committee for Education (North-West Province) & another 1998 (1) SA 745 (CC)
    4. To put things into perspective:
    5. The definitional clause of this Act, section 1, defines ‘employment policy or practice as follows:



    “employment policy or practice” includes, but is not limited to -

    (a) recruitment procedures, advertising and selection criteria;

    (b) appointments and the appointment process;
    (c) job classification and grading;
    (d) remuneration, employment benefits and terms and conditions of employment;
    (e) job assignments;
    (f) the working environment and facilities;
    (g) training and development;
    (h) performance evaluation systems;
    (i) promotion;
    (j) transfer;
    (k) demotion;
    (l) disciplinary measures other than dismissal; and
    (m) dismissal.


    6. s 6(1) reads as follows:



    No person may unfairly discriminate, directly or indirectly, against an employee, in any
    employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.


    I trust that at the very least, this might point you in the right direction, also make enquiries regarding the 3 different stages of an unfair discrimination enquiry. Again, at the very least, this might point you in the right direction.
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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    Diamond Member HR Solutions's Avatar
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    No contract so what case do you have exactly ???
    HR Solutions - Recruitment Specialists - Johannesburg & Capetown Tel: 0861-045-263
    Upload your CV @ www.2hrs.co.za

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    Diamond Member Vanash Naick's Avatar
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    Quote Originally Posted by HR Solutions View Post
    No contract so what case do you have exactly ???
    A very good morning to you HR Solutions,

    One doesn't require a employment contract to pursue an unfair discrimination case(This is so becuase section 6(1) also applies to applicants for employment!) Furthermore as already stated, the list of the 19 grounds in non-exhaustive simply meaning that grounds can be added to it. Moreover, where there is an unspecified ground the court will use 'dignity,' as a benchmark measure to assess whether the unspecified ground does have merit.
    As already mentioned, this avenue is not an easy one to pursue but nonetheless can indeed be pursued.
    Please revisit # 8 as it put things into perspective...
    “The philosophers have only interpreted the world, in various ways. The point, however, is to change it.” Karl Marx
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