Issue in dispute
If an employer tenders an unconditional letter of appointment to a prospective employee and the employee accepts same, the prospective employee shall be regarded as having been employed by the employer. Therefore, the subsequent withdrawal of the letter (even prior to the effective date of appointment) will constitute a dismissal for the purposes of the Labour Relations Act 66 of 1995 (“LRA”)
In Irene Matsie Langa v South African Local Government Bargaining Council and 2 others (dated 8 February 2013) the Labour Court had to deal with the above mentioned issue. Mrs Langa (“the employee”) had applied, in response to a written advertisement, to fulfill the role of an examiner of motor vehicle and driver’s licenses. The advertisement stipulated a number of conditions which applicants had to meet, one of which was that the applicant must have at least one year’s experience as an examiner of vehicles and testing officer for driver’s licenses. It subsequently transpired that the employee had failed to meet the aforementioned condition.
An interview was conducted with the employee and the employer issued the employee with an unconditional letter of appointment on 5 July 2008. The start date of the employee’s employment was 1 August 2008. The letter of appointment made no mention of the requirements stipulated within the advertisement. The employer subsequently withdrew the letter of appointment on 28 July 2008 pending investigations into whether or not the employee satisfied the conditions of the post.
The court held that because neither the appointment letter nor her letter of employment contained a recordal of the conditions, an employment relationship had indeed come into existence. The withdrawal of the unconditional offer on the 28 July therefore constituted a dismissal of the employee.
Employers must ensure that the requirements which attach to a particular position are clearly and consistently communicated and applied. This requirement arises at the time of advertising the post; must be applied during the selection and recruitment process and recorded in any offer of employment. Ideally, the conditions and requirements should be stipulated as pre-conditions in the letter of appointment which should provide that the employee warrants that he/she is aware of same and that he/she fulfills and meets those conditions.