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The one case you need to know about when it comes to electronic employment offers...

by , 02 June 2016
The one case you need to know about when it comes to electronic employment offers...Smartphones, tablets and laptops... We're in an age where most of our communication happens electronically. And when it comes to hiring employees - it's no different.

How many times have you emailed an offer of employment to someone? Did you know that your electronic communication is legally binding?


Let's have a look at a case where the courts ruled in the employee's favour when it came to accepting a job offer.
 
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Why is this case so important?
 
This is what the Labour Court said in the case of Jafta v Ezemvelo KZN Wildlife (D204/07) [2008] ZALC 84 (1 July 2008). It shows what rules apply when businesses communicate and agree on contracts electronically.
 
You need to know what you can and can't do when it comes to offering a job electronically.
 
The abbreviated facts
 
·         Mr Jafta was successful in his job application. Wildlife sent him a job offer via email on 13 December.
·         They wanted him to start on 1 February.
·         Mr Jafta told them he was going to accept the offer, but with a later starting date. On 28 December he received an email saying he had to respond to the offer by the end of December. And the start date was not negotiable.
·         He was on leave at the time but went to an internet café to send the HR officer at Wildlife, Ms Phakathi an email. This was at 7:51pm on 29 December using Gmail.
·         The email didn't 'bounce back' but Wildlife denied getting it.
·         On 29 December, Ms Phakathi sent him an SMS. It said that if he didn't confirm his acceptance, they'd give the position to someone else.
·         Mr Jafta replied by SMS saying:
"have responded to the affirmative through a letter emailed to you this evening for the attention of your CEO. Had problems with email I had to go to internet café".
·         Ms Phakathi admitted to getting the SMS. But she couldn't remember the word 'affirmative'.
·         The Court accepted Mr Jafta's version because he'd saved the SMS for some time knowing this issue was important.
·         Mr Jafta sent the email from an internet café using Gmail. The email was in his 'sent' box and he didn't get a notice of non-delivery.
·         Wildlife tried to contact Mr Jafta by telephone. But they couldn't reach him because he was on holiday in Mozambique.
·         It then gave the position to someone else.
·         Mr Jafta sued for damages suffered by him. He said Wildlife was in breach of contract.
 
Read on to find out what Wildlife argued…
 
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What did Wildlife argue?
 
Wildlife didn't argue that emailing an acceptance of its offer was acceptable. But it denied getting his email.
 
It also said the SMS reply wasn't a clear acceptance of the offer. It also denied that Ms Phakathi had the authority to conclude a contract via SMS. It also said SMS wasn't an appropriate way to accept a job offer.
 
Wildlife agreed that if the Court found that it and Mr Jafta had concluded a contract, then it had breached the contract.
 
What did the Court decide?
 
The Court found Mr Jafta's reply 'to the affirmative' on SMS was a direct response to Wildlife's enquiry about starting on the required date.
 
The Court said there are four common law requirements for accepting an offer
  1. Acceptance must be clear, unequivocal and unambiguous.
  2. The acceptance must correspond with the offer made on both the terms and the time it stipulates.
  3. The acceptance must be in the way the offer prescribes.
  4. The person receiving the offer must tell the person making the offer, that he accepts it.
     
What did the Court decide?
 
The Court confirmed that because Mr Jafta said there was a contract, he had to prove this.
 
Proof of email
The parties didn't agree that he couldn't accept the offer electronically. Mr Jafta's email didn't bounce back so the Court accepted it went through the Gmail information system. But, it didn't get to Wildlife's system. So Wildlife didn't retrieve it and couldn't process it. Even though Mr Jafta didn't prevent Wildlife from retrieving his email acceptance.
 
So, the Court said Wildlife didn't get the email. It didn't matter that it was probably because one of the information systems had malfunctioned.
 
Looking at the SMS
The Court found the SMS was a form of electronic communication as per the ECT Act. So it had legal force and effect. An SMS is as effective a mode of communication as an email or a written document.
 
What was the judgement?
 
The Court concluded that:
1.     A contract of employment had come into existence.
2.     Wildlife had unlawfully breached the contract.
3.     Mr Jafta was entitled to damages as a result of this breach.
 
Keep reading to find out what you can learn from this….
 
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What you can learn from this case?
  • You can enter into contracts by email or SMS.
  • You still have the right to decide what formalities apply to your contracts.
  • If you don't want email and SMS to apply, then you must specify they won't be binding.
  • If you don't expressly exclude them, then the ECT Act applies.
  • A party who alleges a contract has to prove there's a contract in place.
  • An offer and acceptance of the offer concludes an employment contract.
So, next time you conclude an employment contract electronically, make sure you have your bases covered!

P.S. For more than 10 years we've been the frontrunner in bringing you the latest in labour law changes – advising you how to implement the changes. Don't get left behind now…


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