Promise of employment and then "sorry for you"

[Rafael]

No contract was signed and you have an e-mail confirming that the contract would be sent to the Head.

Unfortunately I cant see you having a strong case, had the contracts been signed that would of been a different story

[Citizen X]

No contract was signed and you have an e-mail confirming that the contract would be sent to the Head.

Unfortunately I cant see you having a strong case, had the contracts been signed that would of been a different story

A very good morning to you Rafael,

In terms of a the law of contract, which is still largely regulated by our Common-Law, a contract need not necessarily be in writing or signed to be a legally valid contract. Of course it's preferable for a contract to be in writting for obvious reasons.

[HR Solutions]

Vanash - I hear what you say regarding the law, but lets really be reasonable about it. A person comes in for an interview for a specific job. Interview takes place and they have not even started, no contract has been signed, but they feel it necessary for a CCMA case ??
I as an employer would test the waters on this one and would be happy to see if they got it right. Surely an employer must also be happy with the person that they eventually hire, they have to work together with the person, perhaps socialise with the person etc etc. They have to feel totally comfortable with the person.

Of course it's preferable for a contract to be in writting for obvious reasons.

I think you have summed it up here. "For obvious reasons"

[Citizen X]

Vanash - I hear what you say regarding the law, but lets really be reasonable about it. A person comes in for an interview for a specific job. Interview takes place and they have not even started, no contract has been signed, but they feel it necessary for a CCMA case ??
I as an employer would test the waters on this one and would be happy to see if they got it right. Surely an employer must also be happy with the person that they eventually hire, they have to work together with the person, perhaps socialise with the person etc etc. They have to feel totally comfortable with the person.





I think you have summed it up here. "For obvious reasons"

I do understand your position, and, all the practical problems that can arise i.e. 100's go for an interview, surely they all can't claim something untoward as only 1 can obtain the position. That said, our law does make provision for an employment applicant as opposed to an employee.
The real problem and challenge for HP10bii, if the advice given at #8 is pursued, is to demonstrate that an ‘unspecified ground,’ exists. This in itself is not an easy task. The next hurdle is that an enquiry of that nature has three stages, each of which poses its own legal hurdles

[HR Solutions]

Yes I understand. But for an employee to pursue this based on "8" is not going to be easy for him, hence my feeling that he is wasting his time. Just my opinion. From past experience employers do change their minds due to circumstances !

[sterne.law@gmail.com]

In relation to the basics.
Once a job offer is made, a person becomes an employee for purposes of LRA. Therefore, if after a job offer, it is retracted, there is a dismissal.
Regarding authority, we have law of estoppel, so even if the manager was not authorised, there is grounds to hold the company liable..
What remains is if a contract came into being? Was there an offer and an acceptance. This need not be in writing.
It would need to be determined if the managers communication was an offer or was the offer going to be when the contract was drafted. [There can be an offer and acceptance, thereafter reduced to writing. Not all details need to be finalised]

The scenario has many possible outcomes.
In principle there is an argument to bge made, the answers to the above dependant.
It seems the only remedy is money, hard pressed to force a company to appoint someone, and does one wish to start against that background?
What is the damages? Fortunately, there was no quitting of a job, hence the position is no worse than it was, albeit that there may have been a better income. Again, the argument as to satisfactory compensation is fraught with many permutations.
It boils down to risk vs return, balanced with stress, goodwill in the industry etc.

[Citizen X]

[QUOTE
Regarding authority, we have law of estoppel, so even if the manager was not authorised, there is grounds to hold the company liable..
[/QUOTE]

Estoppel can be pursued by common-law or ex lege(where legislation makes provision). Estoppel is a doctrine which operates in the following circumstance: When one person represents to another that a certain set of facts exist, and the other person changes his own legal position to his very own detriment, by acting on the strength of the representation, the person making the representation is precluded or estopped from stating that a different set of facts exist.

so even if the manager was not authorised, there is grounds to hold the company liable..

The doctrine of vicarious liability

[HR Solutions]

On the same note, when the tables are turned - the candidate gets the letter of appointment and it is agreed he starts on a certain date. Come that date the candidate either just does not pitch up or phones and says he has changed his mind !!
The recruitment company and/or the company he was going to work for should have recourse to sue the candidate, because money has now been lost all along the line !!!!

[sterne.law@gmail.com]

Nothing precludes you from seeking compensation.
Of course the time and money may stop this. Same as when an employee fails to give proper notice.

You could have a penalty clause thereby not requiring shoqing quantum for damages claim.

[Citizen X]

Nothing precludes you from seeking compensation.
Of course the time and money may stop this. Same as when an employee fails to give proper notice.

You could have a penalty clause thereby not requiring shoqing quantum for damages claim.

Indeed, my learned colleague! One can actually go ‘forum shopping,’ since labour law is governed by both common law and legislation i.e. High Court(damages) in terms of common law or CCMA/Labour Court in terms of legislation