On 15 March 2020 the Covid-19 virus was declared a state of disaster in terms of section 23(1)(b) and 27(1) of the Disaster Management Act 57 of 2002.
A fixed term contract is a contract that runs from one specific date to another specific date. It can also be based on the completion of a project. This period is determined before employment and reduced to writing.
Upon the date of completion of a project or the specified end date of the contract, the employment relationship is terminated and the employee is unemployed.
The benefits of fixed term contracts are the following:
- There is no obligation for the employer to pay pension and provident fund contributions.
- The employer saves money as other benefits such as medical aid is unnecessary.
- It is easier to rid the workplace of the “non performers”.
- The employer escapes liability of certain provisions of the Basic Conditions of Employment Act.
However, this form of contract is often greatly misunderstood by the employer. One such example is that employers often renew an employee’s fixed term contract a number of times. The danger is that the employee now has the expectation that the contract will again be renewed and when this does not occur, the employee refers an unfair dismissal matter to the relevant forum.
Experience and current case law has shown that the employee generally wins this fight at the CCMA or bargaining council.
The defence often utilised is that the fixed term contract contains a clause that “no expectation of continued employment may be expected by the employee”. This defence is generally not accepted as a result of the practice created by the employer that once the contract reaches finality, it is renewed. No such clause will trump a practice created by the employer.
A further danger is when the employer forgets to renew the fixed term contract after its expiry and the employee continues to render his/her services. In this scenario, the legal position is that the employee’s status changes from that as fixed term to permanent. The employee is now entitled to claim benefits under the Basic Conditions of Employment Act.
Employers must ensure that proper administration is kept and that should the
employer decide not to renew a fixed term contract, a letter informing the employee of the non renewal of the fixed term contract, is provided to the employee at least a week prior to his/her termination.
In conclusion, we urge employers to use fixed term contracts for its purpose intended.
Should you not be able to justify the use of a fixed term contract and do not have the proper administration in place to deal with same, you are playing fire and will get burnt.