Fixed-term contracts can be a dangerous tactic
South Africa's labour legislation provides strong protection for employees.
That is, numerous and imposing obstacles in the law and in the legal system make it extremely difficult for employers to dismiss those employees who deserve to be got rid of.
These obstacles include:
• A plethora of procedures that must be followed before a dismissal can be considered to be fair;
• Stringent and numerous criteria for deciding whether the reason for a dismissal is fair;
• Broad discrepancy between judges and arbitrators as to the interpretation of the labour law;
• The provision that, where a dismissal is adjudged to be unfair, the arbiter may reinstate the employee or impose a heavy compensation order of up to 24 months' pay in some cases against the employer;
• The employer is automatically considered guilty of unfair dismissal until it has proven otherwise; but despite this is still required to present its case first at the unfair dismissal hearing; and
• Despite the fact that many employers do not have the expertise to defend cases at the CCMA, the law makes it difficult for them to use legal experts as representatives.
Therefore, in an attempt to circumvent all this onerous legislation, employers attempt to avoid having to dismiss undesirable employees by hiring workers on fixed-term contracts.
Then, if the employee is seen as unsuitable, the employer merely allows the contract to lapse at its expiry date. However, this is a dangerous tactic because labour law has virtually closed this loophole.
That is, if the employer gives the employee a "reasonable expectation" that the contract will be renewed on expiry, the arbitrator could force the employer to renew the contract.
In the case of King Sabata Dalindyebo Municipality vs CCMA and Others (2005, 7 BLLR 696) the employer made a habit of regularly renewing fixed-term contracts.
But then it allowed the last contracts to lapse even though there was still available work for the terminated employees.
The Labour Court found that the employees had a reasonable expectation of having their contracts renewed again and forced the employer to renew the contracts.
In the case of Pretorius vs Sasol Polymers (2008, 1 BALR 10) Ms Pretorius was appointed on a fixed-term contract to act in place of the permanent incumbent.
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i was forced to resign by my employer .They employed me on a fixed contract paying x amount per month.I had an argument with the bosses pet and since then she was after me.They decided to reduce my salary by 2000 rand so i quit.Can i get compensated for the remainder of my contract at conciliation.Do i have a strong case?
ReplyDeleteNiesaam, skattie... I would pay to know what your parents were thinking when they named you!
ReplyDeleteAre you perhaps a twin... that was born hours after his womb-mate?
Perhaps they argued about naming you Apartheid Kellerman... and settled on Niesaam?
LOL! I really want to know!
PS.
Why have you not replied to the question posted by Ashton on 1/4/2010?
To quote you, "Employees may post their questions here by clicking on any comment button and I will gladly answer - for -FREE - No catch."
Hi Ashton, I have neglected this blog to see to an extremely sick colleague i would possibly have lost after being diagnosed with a severe illnes. I do apologise. If its' any consolation, here goes: What happened to you was a unilaterla change to terms and conditions of your employment to be less favourable than before. However since you resigned it would have to be referred as a Constructive Dsimissal. This matter may be referred to the CCMA, but bare the following in mind. In Constructive Dismissal claims, the onus is on the employee to prove that the dismissal was unfair. Any other form of dismissal requires the employer to prove that the dismissal was fair. You would have to prove that continuing work fro the same employer was made completely intolerable by the employer and therefore you had to resign. If you wish to get some more detailed attention to your matter, send me an email on nkel@vodamail.co.za
ReplyDeleteTo Jilli:
ReplyDeleteIt would be inappropriate for me to be truthfull about your comment on my name, so, I will be proper and say this: My name is Niethaam, pronounced as Nidhaam, an arabic word, that comes from ANNIDHAAM, something I dont expect a "non arabic understanding person" would understand anyway. Besides, since I was actually also named as NIEZAAM and the department of HOME AFFAIRS turned the Z into a S, my name now resembles what you would understand to be " not together". oh & for the record, there was no twin.
LOL, I do think that your comment was funny anyway. thanx for cheering some colour onto my BLOG ...........
I was working at a Company for just over a year. I put in my resignation at my company. On my employment contract I had a restraint of trade clause in. They found out in my resigning month that I gave a person a business card to enhance my personal business. They suspended me on alleged charges of:1Dishonesty during course of employment in that I approached a contractor of a client of the company I worked for to further my own business. This client is a client of the company I worked for and notified them of a proposal I made which he they declined. These actions on my part have brought the name of the company in disrepute.
ReplyDelete2.Conduct unbecoming of an employee in that I approached a client of the employer with a private quotation that is in direct conflict with the business of the employer and could lead to potential harm to the business.
3.Breach of employees duty of good faith to the company in that approaching a client of the employer and offered them a quote for work to be performed which is in direct conflict with the business of my employer and my position. My website further list clients of my company whilst these are clients of my employer and of my company and its business is in direct conflict with what I where contractually contracted for to my employer. I had a disciplinary hearing a week later, and after 3 days I was requested to come and sign for my immediate dismissal on ground of being found guilty of breach of employees duty of good faith to the company and work performed which is in direct conflict with business of my employer. None of the clients stated in above mentioned alleged allegations is clients of my previous employer. These clients can verify this.This happened on 20 March 2012. A client of my employer head hunted me to come and work for them on 22 March 2012. I did informed my employer that this client advertised a Health & Safety co-ordinators position on 8 February 2012. He informed me that until such time they found someone my employer will continue providing them with the services.I have been appointed as a Health and Safety officer at new employer which was a client of my previous employer. Now my previous employer after having a meeting with my new employer telling them he cannot stand in my way of have to earn a income and working. This happened Friday 30 March 2012. Monday 2 April 2012 my new employer received a lawyers letter stating that my new employer is considering employing me as a “in house” health and Safety Consultant. The contract of employment initially entered into my previous employer ’s client and myself clearly provides a restraint of trade to which I must abide and we submit that employment with myself would drastically fringe my previous employers rights in terms of the said restraint of trade(valid for one year within the western cape). Further the instruction from previous employer’s lawyers to request that New employer refrain from employing me, failing which my previous employer reserves its rights to act in terms of employment agreement mentioned above. The aforementioned would entail an application for an interdict at Cape Town High Court.My previous employer is also in the process of seeking information of private business I done to lay a claim of loss of income against them. How can I proceed with this by proceeding with my new employment as I am currently loosing an income for each day this is not resolved.My job at new employer has been put on hold now because of my previous employers lawyers letter to them.I hope you can assist me in this matter.
Rudi Erasmus
Cell: 081 442 5899
You have observed very interesting points ! ps nice website . company website
ReplyDeleteHey this is kinda of off topic but I was wanting to know if blogs use WYSIWYG editors or if you have to manually code with HTML. I’m starting a blog soon but have no coding experience so I wanted to get advice from someone with experience. Any help would be greatly appreciated! Get More Information
ReplyDelete