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Questions and Answers
What documentation is required for an offer of a fixed-term contract according to section 198B?
What documentation is required for an offer of a fixed-term contract according to section 198B?
The offer must be in writing and state the reasons for the fixed term as outlined in subsection (3)(a) or (b).
How should employees on fixed-term contracts be treated compared to permanent employees performing similar work?
How should employees on fixed-term contracts be treated compared to permanent employees performing similar work?
Employees on fixed-term contracts must not be treated less favorably than permanent employees unless there is a justifiable reason for different treatment.
What are the consequences if a fixed-term contract is concluded or renewed in violation of subsection (3)?
What are the consequences if a fixed-term contract is concluded or renewed in violation of subsection (3)?
The employment is deemed to be of indefinite duration, effectively making the employee a permanent staff member.
What justifications can an employer provide for offering a fixed-term contract longer than three months?
What justifications can an employer provide for offering a fixed-term contract longer than three months?
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What must an employer include in the written offer for a fixed-term contract?
What must an employer include in the written offer for a fixed-term contract?
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In what situation can a fixed-term employee be employed for longer than three months?
In what situation can a fixed-term employee be employed for longer than three months?
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What obligation does an employer have regarding equal access to vacancies for permanent employees?
What obligation does an employer have regarding equal access to vacancies for permanent employees?
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What characteristic defines a fixed-term contract according to section 198B?
What characteristic defines a fixed-term contract according to section 198B?
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What documentation is required for fixed-term contracts to demonstrate a reasonable expectation of renewal?
What documentation is required for fixed-term contracts to demonstrate a reasonable expectation of renewal?
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How does the principle of equal treatment apply to fixed-term versus permanent contracts?
How does the principle of equal treatment apply to fixed-term versus permanent contracts?
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What are the consequences of improperly managing fixed-term contracts in employment?
What are the consequences of improperly managing fixed-term contracts in employment?
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What justifies the use of a fixed-term contract rather than a permanent one?
What justifies the use of a fixed-term contract rather than a permanent one?
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What steps should an employee take if facing constructive dismissal on a fixed-term contract?
What steps should an employee take if facing constructive dismissal on a fixed-term contract?
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What constitutes constructive dismissal in the context of fixed-term employment?
What constitutes constructive dismissal in the context of fixed-term employment?
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Under what circumstances is an employee protected from dismissal according to Section 187?
Under what circumstances is an employee protected from dismissal according to Section 187?
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What must be proven for an employee to claim constructive dismissal successfully?
What must be proven for an employee to claim constructive dismissal successfully?
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What is the primary difference regarding employer responsibility between the first three months and after three months in the context of Section 198A?
What is the primary difference regarding employer responsibility between the first three months and after three months in the context of Section 198A?
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How does Section 198(2) affect the employment contract between the TES and the worker when Section 198A(3)(b) is activated?
How does Section 198(2) affect the employment contract between the TES and the worker when Section 198A(3)(b) is activated?
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Under what circumstances does Section 198B not apply to employees concerning fixed-term contracts?
Under what circumstances does Section 198B not apply to employees concerning fixed-term contracts?
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What are the possible legal consequences for a client if they improperly classify an employment contract with a worker?
What are the possible legal consequences for a client if they improperly classify an employment contract with a worker?
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What must a client and TES consider before terminating their contractual relationship under Section 198(3)(b)?
What must a client and TES consider before terminating their contractual relationship under Section 198(3)(b)?
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What justification underlies the use of fixed-term contracts in the context of temporary employment services?
What justification underlies the use of fixed-term contracts in the context of temporary employment services?
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In what ways is equal treatment mandated between fixed-term and permanent employees according to the law?
In what ways is equal treatment mandated between fixed-term and permanent employees according to the law?
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How does the relationship between a worker, the client, and the TES illustrate the concept of dual employment?
How does the relationship between a worker, the client, and the TES illustrate the concept of dual employment?
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Study Notes
Fixed Term Contract
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A fixed-term contract is a contract of employment that terminates on:
- The occurrence of a specified event
- The completion of a specified task or project
- A fixed date, other than an employee’s normal or agreed retirement age
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A fixed term contract can only be concluded if one of the following applies:
- The nature of the work for which the employee is employed is of a limited or defined duration
- The employer can demonstrate any other justification reason for fixing the term of the contract.
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When a fixed-term contract is concluded in contravention of the above, the employee is deemed to be employed on an indefinite basis.
Consequences of Unjustified Fixed Term Contract
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If a fixed-term contract is concluded or renewed in contravention of the law, the employee is deemed to be employed on an indefinite basis.
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An employer must provide an employee employed on a permanent basis with equal access to opportunities to apply for vacancies.
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Employees on a fixed-term contract should not be treated less favourably than employees employed on a permanent basis performing the same or similar work, unless there is a justifiable reason for different treatment.
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An offer to employ an employee on a fixed-term contract must be in writing and state the reasons for the contract.
Constructive Dismissal
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Occurs when an employee terminates a contract of employment involuntarily.
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The continued employment must be objectively intolerable.
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The intolerable circumstances must have been of the employer's making, and the employer must be culpably responsible for the conduct that created the intolerable condition.
The Centre for Autism Research Case
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An employer needs to follow the internal grievance procedure before resigning, but only where the procedure is effective.
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In the Centre for Autism Research case, the grievance procedure was not effective because the issue was sent to the CEO who was responsible for creating the intolerable workplace conditions.
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In this case, the court found that there was constructive dismissal, and the employee had good reasons for resigning, serving their notice, and not following internal procedures.
Section 187 Dismissal
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Section 187 of the Labour Relations Act lists reasons for which an employee cannot be dismissed.
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These reasons include:
- Dismissal contrary to right to freedom of association
- Participation in a protected strike or protest action
- Refusal to do work of protected striking employees
- Dismissal because of refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer
Section 198A(3)(b) Dual Employer Relationship
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The Assign Services case considered whether section 198A(3)(b) created a dual employer relationship or a sole employer relationship.
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The majority judgment concluded that for the first three months, the temporary employment service (TES) is the employer, and subsequently, the client becomes the sole employer.
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The dissenting judgment maintained that a dual employer relationship exists, as the legislation does not expressly state that the TES ceases to be the employer after three months.
Section 198(4A) Client and TES Liability
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If the client is deemed to be the employer of an employee in terms of section 198A(3)(b), the employee can institute proceedings against either the TES, the client, or both.
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Any order or award made against the TES or client can be enforced against either.
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The employee can also claim against the TES, but the liability lasts as long as the relationship between the TES and the client exists.
Section 198(2) Statutory Employment Contract
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Section 198(2) creates a statutory employment contract between the TES and the placed worker.
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This contract is altered when section 198A(3)(b) is triggered.
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It is not a transfer to a new employment relationship, but rather a change in the statutory attribution of responsibility as an employer within the same triangular employment relationship.
Non-Standard Employment Exemptions
- Section 198B does not apply to:
- Employees earning above the BCEA threshold
- Employers that employ less than 10 people or that employ less than 50 employees and whose business has been in operation for less than two years
- Fixed term contracts permitted by any statute, sectoral determination or collective agreement
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Description
This quiz explores the key aspects of fixed-term contracts, including their definition, criteria for use, and the consequences of unjustified contracts. It covers legal considerations and the implications for both employees and employers regarding employment status.
