Daily I receive queries from employers and employees about the law pertaining to short-term contracts, fixed-term employment and casual work.
Our Labour Relations Act (LRA) does govern these arrangements and in terms of Section 198B (3, 4 and 5) it is clearly spelt out. The amendments to the LRA came into being on January 1, 2015.
An interesting judgment has just been published by the Labour Appeal Court dealing with these types of employment, hence this article.
First, it must be known that this law applies to workers falling under a prescribed earnings threshold. This threshold is about R17 200 a month. If the employee earns less than that figure then the law is applicable to that employee.
Furthermore, if an employer employs someone on a fixed-term basis in excess of three months (except in certain circumstances) then the employee becomes permanent.
If the contract of employment or agreement of employment specifically outlines why it is necessary for a longer period then this can be accepted by the CCMA and the Labour Court.
If a fixed-term contract is longer than three months, or another contract is entered into beyond that three months, even with a time gap, the employee will be deemed permanent, despite the wording of the contract.
It is specifically noted that a fixed-term contract means a contract of employment that terminates on - (a) the occurrence of a specific event; (b) the completion of a specified task or project or (c) a fixed date other than the employees normal agreed or retirement age.
Obviously an employer may employ an employee on a fixed-term contract or successive fixed-term contracts for longer than three months of employment if the nature of the work for which the employee is employed is of a limited or a definitive duration.
Also, if the employer can demonstrate that there’s any other justifiable reason for fixing the term of the contract. A good example of this would be when an employee takes off more than three months for maternity leave and the employer engages a replacement for four months or longer.
This arrangement would be specifically outlined by the employer in the contract to show that there is a specific reason for employing longer than three months.
A student or a recent graduate who is employed for the purpose of being trained or gaining work experience would be able to be given contracts beyond the three months and not become permanent.
Over and above this, a non-citizen who has been granted a work permit for a defined period can work for that period without becoming permanent.
Again, this must be mentioned in the contract of employment. An employee who is taken on to perform seasonal work such as farm labourers would enter into contracts of employment with the farmer to show that it is employment for the season only.
Often the season lasts longer than three months and the employees would have no claim for permanency.
There are other examples where an employee would have a contract longer than the three months in order to specifically perform and complete a project for a certain period of time.
The employee employed in terms of the fixed-term contract for longer than the three months must not be treated less favourably than the employee employed on a permanent basis who is performing the same work.
The LRA does contemplate that an employee employed in terms of a fixed-term contract must be treated equally to one who is on a permanent basis and both must have equal access to opportunities to apply for vacancies.
This law is not retrospective and anyone who has been employed for longer than three months after January 2015 would have a claim for permanency.
There are many employers still abusing fixed-term contracts and short-term employees by giving them contracts calling them casual workers. These contracts are overridden by the law.
Should any employee have a contract terminated after a fixed-term contract this can be challenged as an unfair dismissal and if it is for operational requirements then an employer would have to follow the law
which covers the retrenchment of an individual.
* Michael Bagraim is a labour lawyer.
** The views expressed here are not necessarily those of Independent Media.