The Definition of “employee” in light of the Constitution of South Africa

Apr 9, 2025 | , , , , | News

At first sight, the following definition of “employee” as provided in Section 213 of the Labour Relations Act (LRA), appears to limit the protections conferred by the Act to individuals who have already physically commenced working for an employer:

“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.”

Delict

If the LRA’s protections, such as the right not to be unfairly dismissed, were conferred only upon those who have commenced the actual rendition of work to an employer, it is easy to envision the unfortunate scenario an individual could find themselves in when, having resigned from their previous job on the basis of a new job offer, the prospective new employer reneges on their offer of employment.

However, section 3 of the LRA stipulates that the Act must be interpreted in compliance with the Constitution, in order to give full effect to the legislative purpose to ensure the protection, promotion and fulfilment of constitutional rights. In turn, section 23 of the Constitution provides that “everyone” has the right to fair labour practices.

In line with this reasoning, the learned Judge in the Labour Appeal Court matter of Wyeth SA (Pty) Ltd v Manqele and Others (JA 50/03) [2005] ZALAC 1 found that the words of the definition of employee in section 213 of the LRA, should not be given their ordinary, literal and grammatical meaning. This would result in “gross hardship, ambiguity and absurdity”.

Rather, he argued, the definition should be interpreted to include individuals who has concluded a contract of employment which is to commence at a future date. In other words, as soon as a job offer is made and accepted, the former job applicant is effectively considered an “employee” under the LRA.

Consequently, employers would be wise to ensure that all contractual details are meticulously finalised when extending an offer of employment.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.

Author:

Johann Venter

Johann Venter

Johann Venter joined CK Attorneys as a Senior Attorney in 2024.

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