Labour Guide Case Law: 2014-08
By Nicolene Erasmus
South African Transport and Allied Workers Union obo Chosane and others / Mamoshako Intergrated Services  3 BALR 304 (CCMA)
The fixed term contracts of the six applicants, all security guards, were not renewed after they expired. The employees claimed that they had a legitimate expectation that their contracts would be extended in the same way as the main contract between the respondent and its client, the Department of Health.
The employer denied that a dismissal had taken place and raised the defence that the contract expired as provided in the contract and hence no legitimate expectation could be claimed by the employees.
The employees led evidence to show that the employer had similar contracts at other clinics, which fact was admitted by the employer. Employees at these clinics were not dismissed.
According to their contract, if the employees worked hard and were dedicated they would be offered further employment if there was such an opportunity. The employer’s witnesses admitted that the employees were hard working and dedicated. In the light of the fact that the employer had retained employees who worked under similar circumstances the employees had a legitimate expectation that their contracts would be extended.
The employer explained that the contracts had not been extended because they had expired and the employer had the prerogative to give other employees an opportunity. Commissioner Shai found that the employee’s version was more probable, that a legitimate expectation was created and that they were dismissed within the meaning of section 186(b) of the LRA. The dismissal was found to be substantively and procedurally unfair and the employer was ordered to pay compensation.
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Two significant labour laws sent to the President for Assent
By Aadil Patel Director, Employment Law, Cliffe Dekker Hofmeyr
Two labour laws were passed by the National Assembly on 4 March 2014 and have been submitted to the President for assent. This means their promulgation is imminent. According to Aadil Patel, Director and Head of the Employment Practice at Cliffe Dekker Hofmeyr, these bills will have a significant impact on labour relations in South Africa and employers should have already prepared themselves for the changes proposed therein.
“The Employment Services Bill, 2012 (ESB) is a new government initiative which will set up a public ’employment services agency’, and will also provide for the regulation and registration of private employment services agencies. These agencies are not labourbrokers but institutions that will provide job seekers with certain services – such as matching job seekers with available work opportunities, registering job seekers, job vacancies and facilitating other employment opportunities.
“The Bill will also set up a nationwide database to monitor employment and assist with government’s goal of creating more jobs, decent work and sustainable livelihoods. Employment of foreign nationals is further curtailed by the Bill, and several requirements will have to be met before such employment may take effect. The Minister of Labour may make regulations to facilitate the employment of foreign nationals” notes Patel.
He says the Labour Relations Amendment Bill (LRAB), No. 16D of 2012provides, amongst other things, more protection to non-standard employees such as fixed-term employees. The proposed amendment to s186(b) of the LRAB, for instance, provides that a failure by an employer to permanently retain an employee, who was engaged under a fixed term contract of employment and who reasonably expected to be permanently retained on the same or similar terms, constitutes a dismissal.
“In this regard, he explains that Temporary Employment Services (labour broker) employees will be subject to a maximum period of placement at a client, of three months, after which those employees will be deemed to be permanent employees of the labourbroker’s client. Typically however, such additional protections are limited to non-standard employees earning below an annual threshold published pursuant to the Basic Conditions of Employment Act.
“The amendments now make it possible for TES employees to be effectively represented by trade unions, with access to all of theorganisational rights normally enjoyed by representative trade unions,” Patel explains.
“The amendments seek to achieve a balance that considers the commercial sustainability of businesses while protecting the interests of workers who earn less than R193 805.00 per annum. The underlying principle in the proposed s198B is justifiability. Employers must be able to justify fixing the duration of an employment contract,” says Patel.
Patel explains that the LRAB will also streamline the procedure to be followed when reviewing CCMA arbitration awards. It further discourages litigants from instituting review applications as a tactical ploy to frustrate or delay compliance with the award.
“The LRAB further impacts on recognition rights and collective agreements. In terms of the amendments, a commissioner determining a dispute about organisational rights will also have to consider the general composition of the workforce. This will include considering the extent to which employees are employed in non-standard forms of employment, such as through a temporary employment service provider or on a fixed-term contract,” he adds.
For more information please contact Aadil Patel at firstname.lastname@example.org