Electronic Employment Offers

We are in an age where most of our communication happen electronically via smartphones, tablets and laptops. When it comes to hiring employees, it is no different.
How many times have employers e-mailed an offer of employment to someone? Do employers know that their electronic communication is legally binding?
Important case
In the Labour Court case of Jafta v Ezemvelo KZN Wildlife (D204/07) [2008] ZALC 84 (1 July 2008), it has been shown what rules apply when employers communicate and agree on contracts electronically.
Employers need to know what they can and cannot do when it comes to offering a job electronically.
The abbreviated facts
Mr Jafta was successful in his job application. Wildlife send 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 e-mail saying he had to respond to the offer by the end of December and that 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 e-mail. This was at 7:51pm on 29 December using Gmail.
• The email did not ‘bounce back’ but Wildlife denied getting it.
• On 29 December, Ms Phakathi sent him an SMS. It said that if he did not confirm his acceptance, they would give the position to someone else.
• Mr Jafta replied by SMS saying: “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”. Ms Phakathi admitted to getting the SMS. But she could not remember the word “affirmative”.
• The Court accepted Mr Jafta’s version because he had 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 did not get a notice of non-delivery.
• Wildlife tried to contact Mr Jafta by telephone, but they could not 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.

 
What did Wildlife argue?
Wildlife did not argue that emailing an acceptance of its offer was acceptable, but it denied getting his email.
It also said the SMS reply was not 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 was not 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.

1. The Court said there are four common law requirements for accepting an offer.
2. Acceptance must be clear, unequivocal and unambiguous.
3. The acceptance must correspond with the offer made on both the terms and the time it stipulates.
4. The acceptance must be in the way the offer prescribes.

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 did not agree that he could not accept the offer electronically. Mr Jafta’s email did not bounce back so the Court accepted it went through the Gmail information system. But, it did not get to Wildlife’s system. So Wildlife did not retrieve it and could not process it. Even though Mr Jafta did not prevent Wildlife from retrieving his email acceptance.
So, the Court said Wildlife did not get the email. It did not 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 Electronic Communication and Transaction Act 25 of 2002 (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.

 
What can be learned from this case?

• Parties can enter into contracts by email or SMS.
• The employer still has the right to decide what formalities apply to your contracts.
• If the employer do not want email and SMS to apply, then it must specify they would not be binding.
• If the employer does not expressly exclude them, then the ECT Act applies.
• A party who alleges a contract has to prove there is a contract in place.
• An offer and acceptance of the offer concludes an employment contract.

So, when employers conclude an employment contract electronically, they must make sure that their bases are covered.