CAN A PERSON BE DISMISSED WHO HAS NOT STARTED WORKING YET?

A question arises as to whether a person who has concluded a contract of employment with an employer enjoys the status of an employee prior to him or her actually commencing work.  Following from this, the question arises as to whether such a person may be dismissed in terms of the Labour Relations Act if his or her contract is terminated prior to the commencement of work.

In the Appeal Court case of WYETH SA (PTY) LTD vs MANQELE it was held that the term employee as defined in Section 213 of the LRA and the requirement that a person “work” for another to be an employee, extends to a person who is contracted to work.  As such, a dismissal can occur between the period from which an individual accepts an offer of employment to commence at a future date and the future date of employment.

For professional legal advice, contact Tracey Mouton on 041 501 9800.