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

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.

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