TYPING ERRORS CAN BE VERY COSTLY… DRAFT CONTRACTS CAREFULLY
NUMSA OBO MAMABOLO AND TWO OTHERS V TRANSALLOYS (PTY) LTD
Transalloys (Pty) Limited, the employer, placed an internal advertisement for three positions of lab analysts. The positions were advertised on a level 5C grading. Three internal employees applied for the advertised positions and were shortlisted, interviewed and were successful.
Over and above the advertisement, during the interviews, the level of the position and the salary attached to it were discussed with the employees. It was made clear that they would be employed and paid at salary level 5C.
However, when the offer of employment was made to the employees, it recorded that the employees would be appointed as lab analysts on level 5A and paid at that level and this offer was accepted by the employees. The employees commenced employment and were even paid for two months on level 5A salaries.
Given that the rest of the counterparts were graded at and paid on level 5C salaries, NUMSA lodged a grievance with the employer seeking that the all other lab analysts should also be graded at and be paid level on 5A salaries. For the record, all those other analysts carried out the same duties as the three newly appointed lab analysts and were graded on level 5C.
As a result of this grievance, the Human Resources Manager at Transalloys received a written warning for negligently appointing the three analysts on level 5A and was instructed to correct the mistake he had made immediately.
Pay back the money
He met with the employees and explained to them that an error had been made in respect of the level they were appointed at as well as the salary paid and, further, that the error would be corrected and that they would not be expected to pay back the money that was already paid to them in error.
The employees were also issued with letters informing them that they had been given an incorrect salary when they were employed on level 5A instead of level 5C and that the mistake would be rectified with their next salary. The employer duly rectified the mistake with the next salary run and, accordingly, reduced the three lab analysts’ salaries. The R3 491 per month overpayment that had occurred over two months was not recovered from the employees.
Breach of contract
NUMSA, on behalf of the employees, demanded that the employer adheres to the contractual agreement, which indicated that the employees were appointed on level 5A. The union did not accept the employer’s submission that the employment offer made to the employees on level 5A was a genuine mistake and that they should have been made an offer and appointed on level 5C.
As the parties failed to resolve the matter, NUMSA eventually approached the Labour Court in terms of the provisions of section 77(3) of the Basic Conditions of Employment Act (BCEA), alleging breach of contract by the employer.
NUMSA, on behalf of employees, argued that the contracts concluded between the employees and the employer appointed the employees on level 5A and that the employer acted in breach of the contracts when the employees’ salaries were changed from level 5A to level 5C. The union wanted the Court to enforce the signed agreement between the lab analysts and the employer.
The employer argued that it uses a grading system to ensure that employees on certain grade levels would earn the same salaries. The position of a lab analysts had been graded at level 5C. The employees had applied for the position of lab analyst that was advertised at level 5C. During the interviews, it was discussed that the position was a level 5C position. Unfortunately, when the contracts were issued to the employees, a typing error was made and their salaries were stated as level 5A. It was an administrative error that caused the employees to be placed on level 5A instead of level 5C and, after the error was picked up, it was corrected and this did not constitute a breach of contract.
Breach of contract
The Court then had to determine whether there was a breach of contract. Looking at the merits of this case, the Court noted the following:
- The advertisement for the positions of lab analyst clearly indicated that the positions are on level 5C and, during the interview process, the employees were also informed that the lab analysts would be appointed and remunerated on level 5C. The offer of employment subsequently made to them reflected the post as lab analyst at level 5A, which is inconsistent with the advertisement and information given to the employees in the interview. It is also inconsistent with the fact that all other lab analysts are employed and remunerated at level 5C and the fact that the position of lab analyst was graded at level 5C.
- The employees knew that they applied for a position of lab analyst on level 5C and they were told that they would be appointed on level 5C and thus could not have expected anything but an offer of employment on level 5C.
- When the employees noticed that the contract offered to them was on a higher salary level, they should have known that there was a real possibility of a mistake in the offer and they had the duty to speak and to enquire whether the expressed offer was the intended offer.
The Court agreed with the employer that based on the evidence elicited, the inclusion of level 5A in the offer made to the employees was a bona fide error as the employees were to be appointed on level 5C. In addition, the Court ruled that the adjustment the employees’ salary levels to level 5C corrected the error that was made and that this does not constitute a breach of contract but rather a rectification.
The outcome may very well have been different had it not been clear to the employees in the interviews that the position was at a level 5C. Please read what you are supposed to sign and make sure it expresses fully the agreement you want to enter into.
More info: Stephen Khola, National Labour Relations and HR Director, ECA(SA)
+27 (0)11392 0000