It’s early December and I’ve been engaged in a long interview process for top candidates with a great client of mine. I am overseas enjoying a holiday in the UK and after an exceptionally long and detailed negotiation process with my candidate and my client around the salary, up and down with acceptances, then needing more, then accepting, then needing more, the offer is finally accepted and the signed offer is sent to my client. Happy days! I thought…
Then, sitting at Heathrow Airport, I get messages from the candidate asking for an increased CTC. So being the Recruiter I am, I go to my client with the request and after it’s brought to the management team abroad, it’s granted and a new start date is agreed upon.
The day before the start date, my candidate says that they cannot start as agreed. Oh my! I let the client know and based on all the events leading to this, the offer is withdrawn, and I notify the candidate. Disappointment all around but I can only adhere to my client’s instruction and we move on.
All is quiet, but then, my client gets sent a notification to attend a CCMA Hearing in JHB. What? Surely this cannot be allowed. But it is, and now that I have experienced this myself, let me inform you on this legality.
As soon as an Offer of Employment is signed by a new employee, there is a legally binding contract between the company and the new employee. Now the law of contract comes into play.
In the LRA and the BCEA, an employee is defined as
“(a) 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
(b) any other person who in any manner assist in carrying on or conducting the business of the employer”
But your candidate had not commenced working for the client, so how can they be an employee?
Well, they are, and this is because of cases that appeared at the CCMA:
- case of Wyeth SA (Pty) Ltd v Manqele & Others; and
- case of Woolworths (Pty) Ltd v Beverley Whitehead (2000) 9 LAC 6.12.2
Basically, the Wyeth case states that there was a contract of employment and where the ‘employee’ was not able to commence work because of the offer being revoked, it constituted unfair dismissal.
The Woolworths case talks about the company’s right to advertise a position that has either been refused by a potential employee or where there is discrimination against a potential employee because of equality reasoning. For e.g. an offer being withdrawn because the company finds out the candidate is pregnant)
The cases support the fact that once an employer has made a legally binding offer of employment to an employee and the employee has accepted the offer, the employer is obliged to honour the contract and can no longer unilaterally revoke the offer.
Ultimately, the CCMA awarded a settlement to the candidate for 3 months’ salary for not a day’s work done and we were shocked. However, this has proven to be a learning curve for us all.
So, what can our clients do in these cases?
Despite having to pay the settlement because of the nature of the cases at hand, what we can say is that clients are entitled to re-advertise a role, with our assistance, if that candidate was not retrenched or re–employed in accordance with labour law. Candidates then do not have any rights to claim anything further from the company, including insisting on being employed there; and any threats around slander of the company, its employees or any agents of the company, are deemed criminal offences.
So, when you have an offer for your candidates, please make sure that your candidate and the client are ‘on the same page’ and all the terms around the offer are agreed upon and met by both parties.
Clients – please be aware that you can have offers subject to specific details, and if need be, stipulate those terms. For example:
“This offer is subject to the successful outcomes of relevant background screening”
Make sure that the terms for the offer are agreed on before making the offer because later, withdrawing the offer because the terms of employment cannot be agreed on, could see you at the CCMA for unfair labour practices.
Once your candidate receives that offer, make sure they understand the terms and conditions around it. If it means you need to baby-sit them through the offer process, then do it. Explain the consequences should the terms not be agreed upon and if they need questions answered and items clarified, then do that for them. I make it part of my process – talking my candidates through the offer and addressing any questions immediately. Iron it all out upfront.
Remember, you are partner to your clients and candidates, so it’s only fair to understand both, and to represent both, equally as well. It builds trust!