I have come across several matters at the CCMA where employees have worked on contracts of limited duration and then, when their contracts have come to and end, refer the matter to the CCMA on the basis that they have been unfairly dismissed. Can they do that?
Everyone knows that our labour laws lean very heavily in favour of employees and that it is very difficult to get rid of them. In fact, where there has been a dismissal the onus is on the employer to prove that the dismissal was fair. In 2009 some 78,000 matters were referred to the CCMA in Johannesburg alone, to the obvious frustration of employers who often had good cause to dismiss an employee.
To get around the myriad restrictions in the way of dismissal, employers resort to the stratagem of signing employment contracts of limited duration with their employees. I have seen some contracts that have the date of termination left blank so that if an employer wants to dismiss an employee he simply fills in the date of termination and tells his employee: ‘Bye-bye, your contract has ended’. Some contracts are renewed on a month-to-month basis!
The CCMA has found if an employer regularly renews fixed-term contracts he gives the employee a “reasonable expectation” that the contract will be renewed on expiry. On that basis a CCMA commissioner is likely to force the employer to renew the contract.
In the case of King Sabata Dalindyebo Municipality vs CCMA and Others 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.
So, unless you are really employing someone for a limited period only don’t think you can get around our tough labour laws with fixed-term contracts.