The purpose of the study was to critically analyze developments and progress made to achieve protection for employees on fixed-term contracts. A critical analysis of the rights of employees on fixed-term contracts was done by outlining its historical development and regulation.
Introduction
Title
- Qualitative research method
- Literature review
- Vulnerable societies
This study provides an analysis of the rights and protection of employees with fixed-term contracts, as well as the right to reasonable expectations. Historical background of fixed-term contracts in relation to the common law approach prior to the introduction of the LRA.
Historical development of fixed-term contracts
Development of fixed-term contracts: Pre- LRA
- Defining a fixed-term employment contract
- Common law position
- Termination of a fixed-term contract
- The right to reasonable expectation under common law
- The International Labour Organisation
- The right to fair labour practice
The South African legislature did not provide a definition of a fixed-term contract until the Labor Relations Amendment Act came into force. There was no emphasis on fairness, the only thing that mattered were the terms of the employment agreement. The unequal nature of the employment relationship led to many employers taking advantage of employees as there was very little job security.
Both instruments address the issue of unilateral termination of the employment relationship by the employer and require member states that have ratified the convention to take reasonable measures to ensure employment security. In the past, the common law applied where the contract of employment did not cover a certain aspect of the employment relationship. Until the enactment of the Employment Relations Amendment Act, the South African legislature provided a definition of a fixed-term employment contract.
Both instruments address the issue of unilateral termination of the employment relationship by the employer and require member states that have ratified the convention to take reasonable measures to ensure employment security. One of the most important constitutional provisions discussed in this study is Article 23(1), which guarantees everyone the right to fair labor practices. Within the framework of the employment relationship, there is a positive duty of the employer to act within the parameters of the protection provided in terms of Article 23(1) of the Constitution.
Significance of fixed-term contracts
Introduction
- The changing nature of work
- Importance of fixed-term contracts
- Employment flexibility
- Defining employment flexibility
- The need for employment flexibility
- The exploitative nature of fixed-term contracts
- Employment security
It is very difficult to know the exact number of fixed-term workers in the South African workforce at the moment, however, according to Statistics South Africa. Although fixed-term contracts do not guarantee employment security as the employment agreement will only exist for a certain period of time, there are several benefits that come with this type of employment relationship and this goes double to the benefit of both employers. and the employee. There is no doubt that workers on fixed-term contracts are more susceptible to exploitation due to the nature of the employment relationship, and less regulation may also be detrimental to their employment rights.
There is a need for the use of non-standard employment contracts, such as fixed-term contracts, but such use does not come without consequences. The increase in the number of non-standard employment agreements, such as fixed-term contracts, is usually accompanied by a decrease in job security.103 This is very important as it also has a negative impact on the ability of employees to achieve financial stability as they cannot do not make long-term financial commitments, as they do not know. It is now safe to say that the standard employee is no longer only employed on a full-time basis under the standard employment agreement, there are a variety of new forms of non-standard employment agreements, such as fixed-term contracts.
Although fixed-term contracts do not guarantee employment security as the employment agreement will only exist for a certain period of time, there are several benefits that come with this type of employment relationship, and this goes double for both. employer and employee. Fixed-term contracts are especially important for smaller companies that require help for a specific period of time and cannot make an indefinite commitment to an employee. This is very disadvantageous for fixed-term contract workers as employment security is an important dimension of quality employment and secure employment is the main means of securing income and being able to make long-term financial commitments.
Regulating fixed-term contracts
Dismissal
- International standards
- The Labour Relations Act 66 of 1995
- Dismissal under the Labour Relations Act 66 of 1995
- Limitations of the LRA
- The Labour Relations Amendment Act 6 of 2014
- Defining fixed-term contracts under the LRAA
- Dismissal of a fixed-term contract employee under the LRAA
- Duration of fixed-term contracts
- Treatment of fixed-term contracts
Huysamen argues that the inclusion of this provision meant that employees on fixed-term contracts were afforded legislative protection for the first time. The mere expiry of the fixed-term contract does not constitute unfair dismissal; an inquiry shall be set up to ascertain the same. However, the duration of the fixed-term contract will still play an important role in determining a reasonable expectation that an employee's fixed-term contract will be renewed on the same or similar terms.
Third, there was no indication from the legislature whether an employee has a reasonable expectation that a fixed-term contract can be renewed and become indefinite. An employer can place an employee on a fixed-term contract for two years, only as long as there is a justification for it. This can be considered as a positive step towards providing some kind of employment security for workers on fixed-term contracts.
It is important to first consider the purpose of fixed-term contracts before expecting employers to provide fixed-term employees with the same training and. The LRA provides that a dismissal includes the employers non-renewal of a fixed-term contract or the renewal of a fixed-term contract on less favorable terms where the employee had a reasonable expectation that the contract would be renewed on the same terms or conditions Similar. . The provision does not provide for a limitation in the number of cases that a fixed-term contract can be renewed; The only requirement is that the employee relies on reasonable expectations when making a claim in terms of section 186(1)(b) of the LRA.
Reasonable expectation
Understanding “reasonable expectation”
- Reasonable expectation: Case law perspective
- Contract clauses expressly excluding reasonable expectation…
- Assurance of renewal
- Reasons to conclude a fixed-term contract…
- Conditions for renewal have been met…
- The rolling over of fixed-term contracts
Conclusion and recommendations
Conclusion
At common law, terms of employment very much reflected the bargaining power of the parties at the time, as there was little regulation of employment, shifting all power to the employer and creating an unequal employment relationship.179 The unequal nature of the employment relationship then led to many employers exploited the employees, as there was very little work. Two fundamental ILO instruments were established to deal with this issue: Convention and Recommendation on Termination of Employment No. 166 of 1982. The legislature not only conformed to the standards of international law, but went a step further by enshrining part of the right contained in Chapter 2 of the South African Constitution.
One of the most important constitutional provisions that is enshrined, especially with regard to fixed-term contracts, is section 23(1). 1, which guarantees every right to fair labor practices.181. The LRA plays an important role in regulating the law relating to unfair dismissal as well as promoting the constitutional right to fair labor practices under section 23 (1) of the Constitution.182 The purpose of the LRA is to promote economic development, social justice, labor peace and democratization of the workplace by fulfilling the primary objectives of the law, which is to implement the fundamental rights which are anchored in the constitution and international obligations. 183. Section 186 provides a statutory definition of what constitutes dismissal and, for the purposes of this inquiry, provides that a dismissal includes the employers' failure to renew a fixed-term contract or to renew the fixed-term contract on less favorable terms where the employee had a reasonable expectation that the contract would be renewed on the same or similar terms.184 In order for the employee to bring in an application for unfair dismissal, it must first be established that it is a matter of dismissal to begin with; if there.
The most important aspect to consider in terms of section 186(1) (b) of the LRA is whether the expectation of renewal is "reasonable". Various instructions will be indicative of a reasonable expectation, such as: “all the surrounding circumstances; the importance of contractual stipulation; renewal or reinstatement duties; availability of mail; the purpose of the fixed-term contract; inconsistent behavior; failure to give reasonable notice; and the nature of the employer's business". Different factors are indicative of the importance of an open list in order to consider different indicators.
Recommendations
It is therefore recommended that the provision regarding the threshold is unimportant to protection and should be abolished so that more fixed-term workers can benefit from the provisions of the LRAA. This also reinforces the important role that fixed-term contracts play in the labor market. Thus, great strides have been made in regulating fixed-term contracts, with the aim of better protecting workers; However, it is recommended that such regulation does not go beyond the whole purpose behind its establishment.
It is further recommended that strict regulation will cause employers to choose not to use fixed-term contracts, which will result in a loss of employment. Any right that applies to permanent employees cannot also apply to fixed-term contract employees due to the nature of their employment contracts. Gericke SB "A new look at the old problem of reasonable expectation: The reasonableness of repeated renewals of fixed-term contracts as opposed to indefinite employment" 2011 PELJ 5.
Gericke SB “The Regulation of Successive Fixed Term Employment in South Africa: A Quest for the Right to Fair Labor Practices” 2015 PELJ 1-3. Huysamen E "An overview of fixed-term employment contracts as a form of typical employment in South Africa" 2019 PELJ 3-6. Geldenhuis J an Evaluation of The Rights of Fixed Term Employees in South Africa (LLD dissertation University of South Africa 2013).
