It is the principle of law of contract that a valid contract comes into existence when an offer has been made and accepted.
Applying this principle in the context of employment law, an employment contract will come into existence when an offer of employment that has been made by an employer is accepted by an employee.
This principle is easy to understand, however, the dispute is always about whether or not such an offer has been accepted.
The mode of communication used in accepting an offer is always central in determining the dispute whether or not a valid contract came into existence.
In a recent case of Jafta vs Ezemvelo KZN Wildlife, the labour court, in determining whether or not a valid contract of employment existed between Jafta and Ezemvelo KZN Wildlife, had to answer the following questions.
The first question was, does acceptance of an offer of employment sent by SMS result in a valid contract? The second question was, when is an acceptance of an offer sent by SMS received? The third question was, is an SMS an electronic communication?
In brief the facts of the case were that: A certain Mr Jafta applied for a position of general manager: human resources. Subsequent to an interview, he was offered a position by Ezemvelo KZN Wildlife. An offer was e-mailed to Jafta on 13 December 2006.
At the time he was an employee of the Eastern Cape Parks Board. On or about December 28 2006 he received another e-mail urging him to respond to the offer of employment by the end of December 2006.
Jafta, on 29 December 2006, while on leave, tried to e-mail his response but his laptop malfunctioned. He proceeded to an Internet café in Pietermaritzburg where he e-mailed his response. It would seem Wildlife never received the e-mail.
On the same day (29 December) Jafta received an SMS from an employer of Wildlife. Jafta responded to the SMS as follows - "Have responded to the affirmative through a letter e-mailed to you this evening for the attention of your CEO. Had problems with e-mail I had to go to internet café."
In light of the above facts, the court had to determine whether the requirements of a valid acceptance of an offer where met by Jafta. And whether the acceptance was received by Wildlife.
The court in reaching its conclusion had to consider the "Electronic Communication and Transaction Act and international law.
Section 23 provides "Time and place of communication, dispatch and receipt: A data message - (a) used in the conclusion or performance of an agreement must be regarded as having been sent by the originator when it enters an information system outside the control of the originator or, if the originator and addressee are in the same information system, when it is capable of being retrieved by the address.
(b) must be regarded as having been received by the addressee when the complete data message enters an information system designated or used for that purpose by the addressee and is capable of being retrieved and processed by the addressee; and ."
Having considered this section and international law, the court came to the conclusion that SMS is as effective a mode of communication as an e-mail or written document and therefore, the contract of employment came into existence.