# Regulatory Compliance Category > Labour Relations and Legislation Forum > [Question] Promise of employment and then "sorry for you"

## Hp10Bii

Good day

I would like to find out if I have a Case for the CCMA or not.
What happened:
I went for an interview with the head of a new branch of a large cement producer in South Africa.
The interview went well and then the company set up an appointment for me to go for tests at an institute the following day.
The results came back and I was told that according to the test, I can definitely do the job.
The Head of the new division said that he instructed the HR department to draw up a 2 year contract and that all that remains is for me to accept the offer and that I should keep the following Friday open to start working and help them with the setup of the new division.
The following day I phoned the HR department to en-quire if they have finished with the contract seeing as we were pressed for time and I would have liked to give a couple of days notice at my current employer.
The HR department was on a course that day.
I informed the head of the new division of this and he said that he would sort it out and that HR should understand how urgent this was.
The following day I was informed by HR that they have been instructed to draw up the contract and the offer, however they just have to meet with the head of the new division first.
Then it was the Friday which I should have started at the company and after HR meat with the head of the new division, they contacted me and said that they were not happy with the fact that the head of the new division did not include them from the beginning and they wanted to have another interview with me on the following Monday.
I went for the interview on the Monday and they reiterated that they were not happy with the fact that they were excluded in the process and they were not happy that I phoned them to find out when the contract would be finished.
However I still went through the interview with them and then I was copied in an email to the recruitment agency that they have decided not to go ahead with my appointment.

In my opinion, they decided to prove a point to the head of the new division by refusing to appoint me.
The 2 year contract would have been to the value of R 1,008,000.00

Thank you for taking the time to read this far.

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## IanF

With a user name of HP10bii I assume you are an accountant. 

It looks like there is politics in this so I would get the Head of the New Division to sort this out, if he really needs you he should be able to get this approved.
I can not answer about a possible claim. But rather approach it from a POV of wanting the job instead of suing them for breach of promise.

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## Hp10Bii

Hi Ian

Thanks for the reply, however the HR department stated on the day that they informed the recruitment agency of not going ahead that they have appointed another candidate which came for an interview with them on that day. I can only speculate that it was a contact of someone at the HR department, who could bypass the testing phase of the interview as well.
When I spoke to the Head of the new Division he stated that "these things happen" and that his hands were tied.

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## adrianh

I thought that an employment contract is only valid once both parties have signed the contract?

I think that if you go on "he said she said" that you will lose!

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## Hp10Bii

Hi Adrian

I do have an email from the Head of the new division where he confirms that the contract would be sent to him the day before he had his meeting with HR.

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## flaker

Just put it down to bad luck.   Nothing signed= No contract. in my opinion (unschooled) you have a very slim chance of winning any legal battle to reverse what has occurred or payment of any monetary compensation in lieu of your non-appointment.

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## adrianh

I can't see you winning. The company can simply say that he did not have the authority to make such a statement.

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## Citizen X

A very good evening to you HP10bii,




> Then it was the Friday *which I should have started at the company* and after HR meat with the head of the new division, *they contacted me and said that they were not happy with the fact that the head of the new division did not include them from the beginning and they wanted to have another interview with me on the following Monday.
> *I went for the interview on the Monday and they reiterated that they were not happy with the fact that they were excluded in the process and they were not happy that I phoned them to find out when the contract would be finished.




*Though this may be a long shot, or a shot in the dark*, it is a possible avenue for you given the actual surrounding circumstances.

*Let me explain:* I would suggest that your course of action involves the Employment Equity Act 55 of 1998(as amended)

1. For *precise statutory interpretation*, one will have to read certain sections in conjunction with others.
2. I would like to take this opportunity to clarify a commonly held misconception, namely, that the list of elements of discrimination in section 6(1) is a *non-exhaustive list* of 19 grounds of discrimination, now non-exhaustive simply means that discrimination is not confined or limited to the list of 19 grounds in s 6(1)[Case-law confirms this], 
3. You as an applicant for employment would therefore have an unspecified ground. The court will then utilise the concept of dignity to firstly establish whether your unspecified ground does have potential to be classified as an unspecified ground for discrimination,[This would be your problem and challenge]. You may want to research _Harksen v Lane NO_ 1998(1) SA 300(CC) and _Larbi-Odam v Members of the Executive Committee for Education (North-West Province) & another_ 1998 (1) SA 745 (CC)
4. *To put things into perspective:*
5. The definitional clause of this Act, section 1, defines ‘employment policy or practice as follows:



*“employment policy or practice”* includes, but is not limited to -

*(a) recruitment procedures, advertising and selection criteria;*

*(b) appointments and the appointment process;*
(c) job classification and grading;
(d) remuneration, employment benefits and terms and conditions of employment;
(e) job assignments;
(f) the working environment and facilities;
(g) training and development;
(h) performance evaluation systems;
(i) promotion;
(j) transfer;
(k) demotion;
(l) disciplinary measures other than dismissal; and
(m) dismissal.


6. s 6(1) reads as follows:


No person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.


I trust that at the very least, this might point you in the right direction, also make enquiries regarding the 3 different stages of an unfair discrimination enquiry. Again, at the very least, this might point you in the right direction.

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## HR Solutions

No contract so what case do you have exactly ???

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## Citizen X

> No contract so what case do you have exactly ???


A very good morning to you HR Solutions,

One doesn't require a employment contract to pursue an unfair discrimination case*(This is so becuase section 6(1) also applies to applicants for employment!)* Furthermore as already stated, the list of the 19 grounds in non-exhaustive simply meaning that grounds can be added to it. Moreover, where there is an unspecified ground the court will use 'dignity,' as a benchmark measure to assess whether the unspecified ground does have merit.
As already mentioned, this avenue is not an easy one to pursue but nonetheless can indeed be pursued.
Please revisit # 8 as it put things into perspective...

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## Rafael

No contract was signed and you have an e-mail confirming that the contract would be sent to the Head.

Unfortunately I cant see you having a strong case, had the contracts been signed that would of been a different story

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## Citizen X

> No contract was signed and you have an e-mail confirming that the contract would be sent to the Head.
> 
> Unfortunately I cant see you having a strong case, had the contracts been signed that would of been a different story


A very good morning to you Rafael,

In terms of a the law of contract, which is still largely regulated by our Common-Law, a contract need not necessarily be in writing or signed to be a legally valid contract. Of course it's preferable for a contract to be in writting for obvious reasons.

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## HR Solutions

Vanash - I hear what you say regarding the law, but lets really be reasonable about it.  A person comes in for an interview for a specific job.  Interview takes place and they have not even started, no contract has been signed, but they feel it necessary for a CCMA case ??
I as an employer would test the waters on this one and would be happy to see if they got it right.  Surely an employer must also be happy with the person that they eventually hire, they have to work together with the person, perhaps socialise with the person etc etc.  They have to feel totally comfortable with the person.





> Of course it's preferable for a contract to be in writting for obvious reasons.



I think you have summed it up here.  "For obvious reasons"

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## Citizen X

> Vanash - I hear what you say regarding the law, but lets really be reasonable about it. A person comes in for an interview for a specific job. Interview takes place and they have not even started, no contract has been signed, but they feel it necessary for a CCMA case ??
> I as an employer would test the waters on this one and would be happy to see if they got it right. Surely an employer must also be happy with the person that they eventually hire, they have to work together with the person, perhaps socialise with the person etc etc. They have to feel totally comfortable with the person.
> 
> 
> 
> 
> 
> I think you have summed it up here. "For obvious reasons"


I do understand your position, and, all the practical problems that can arise i.e. 100's go for an interview, *surely they all can't claim something untoward as only 1 can obtain the position*. That said, our law does make provision for an employment applicant as opposed to an employee.
The real problem and challenge for HP10bii, if the advice given at #8 is pursued, is to demonstrate that an ‘unspecified ground,’ exists. This in itself is not an easy task. The next hurdle is that an enquiry of that nature has three stages, each of which poses its own legal hurdles

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## HR Solutions

Yes I understand.  But for an employee to pursue this based on "8" is not going to be easy for him, hence my feeling that he is wasting his time.  Just my opinion.  From past experience employers do change their minds due to circumstances !

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## sterne.law@gmail.com

In relation to the basics.
Once a job offer is made, a person becomes an employee for purposes of LRA. Therefore, if after a job offer, it is retracted, there is a dismissal.
Regarding authority, we have law of estoppel, so even if the manager was not authorised, there  is grounds to hold the company liable..
What remains is if a contract came into being? Was there an offer and an acceptance. This need not be in writing.
It would need to be determined if the managers communication was an offer or was the offer going to be when the contract was drafted. [There can be an offer and acceptance, thereafter reduced to writing. Not all details need to be finalised]

The scenario has many possible outcomes.
In principle there is an argument to bge made, the answers to the above dependant.
It seems the only remedy is money, hard pressed to force a company to appoint someone, and does one wish to start against that background?
What is the damages? Fortunately, there was no quitting of a job, hence the position is no worse than it was, albeit that there may have been a better income. Again, the argument as to satisfactory compensation is fraught with many permutations.
It boils down to risk vs return, balanced with stress, goodwill in the industry etc.

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Citizen X (07-Aug-13), Dave A (07-Aug-13)

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## HR Solutions

On the same note, when the tables are turned - the candidate gets the letter of appointment and it is agreed he starts on a certain date.  Come that date the candidate either just does not pitch up or phones and says he has changed his mind !! 
The recruitment company and/or the company he was going to work for should have recourse to sue the candidate, because money has now been lost all along the line !!!!

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## Citizen X

[QUOTE
Regarding authority, we have law of *estoppel*, so even if the manager was not authorised, there is grounds to hold the company liable..
[/QUOTE]

Estoppel can be pursued by common-law or _ex lege(_where legislation makes provision). Estoppel is a doctrine which operates in the following circumstance: When one person represents to another that a certain set of facts exist, and the other person changes his own legal position to his very own detriment, by acting on the strength of the representation, the person making the representation is precluded or estopped from stating that a different set of facts exist.







> so even if the manager was not authorised, there is grounds to hold the company liable..


The doctrine of vicarious liability

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## sterne.law@gmail.com

Nothing precludes you from seeking compensation.
Of course the time and money may stop this. Same as when an employee fails to give proper notice.

You could have a penalty clause thereby not requiring shoqing quantum for damages claim.

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## Citizen X

> Nothing precludes you from seeking compensation.
> Of course the time and money may stop this. Same as when an employee fails to give proper notice.
> 
> You could have a penalty clause thereby not requiring shoqing quantum for damages claim.


Indeed, my learned colleague! One can actually go ‘forum shopping,’ since labour law is governed by both common law and legislation i.e. High Court(damages) in terms of common law *or* CCMA/Labour Court in terms of legislation

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## Rafael

Are you going to pursue this HP10bii?

Would be interesting to know of the outcome.

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## Hp10Bii

Sorry for the late reply, have been busy,
One last thing I want to add, when I went for the interview with the HR department, the head of the HR stated that they heard that the head of the new division did offer me the job and that he does have the mandate to appoint people, however they felt that he did not follow the proper procedure.

With regards to persevering with this, it would depend on if I find a lawyer who would take this on a no win no fee basis.

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## HR Solutions

> Sorry for the late reply, have been busy,
> One last thing I want to add, when I went for the interview with the HR department, the head of the HR stated that they heard that the head of the new division did offer me the job and that he does have the mandate to appoint people, however they felt that he did not follow the proper procedure.
> 
> With regards to persevering with this, it would depend on if I find a lawyer who would take this on a no win no fee basis.



Now that would be a good test. Because if battle to find one, based on your facts, its basically giving you the answer.
But you might find one that would just lodge the paper work and generally be a thorn in their side hoping for an outcome.

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