Article 41/2021

Labour Edge

Does merely being employed on the basis of a series of fixed-term contracts, without more, create a reasonable expectation in terms of s186(1)(b) of the LRA?

The provisions of s186(1)(b) of the LRA were interpreted in University of Pretoria v CCMA and Others (2012) 33 ILJ 183 (LAC) (Davis JA) as follows:

‘[18]   The words employed in s186 envisage that two requirements must be met in order for an employer’s action to constitute a dismissal:

  • a reasonable expectation on the part of the employee that a fixed term contract on the same or similar terms will be renewed; and
  • a failure by the employer to renew the contract on the same terms or a failure to renew it at all.

These words do not however carry the meaning which is urged by third respondent, namely that, by being employed on the basis of a series of fixed terms contracts, an employee has without more a reasonable expectation of a permanent appointment. The distinction between the fixed term contract and a permanent contract has a clear economic rationale. An employer in the position of appellant may have discretionary funds for a limited period. During this period, it offers a series of fixed term contracts to a particular employee. At some point these funds are depleted and the employer can no longer afford a further fixed term contract. By contrast, the creation of a permanent post would necessitate a more permanent source of funding”

[21]    The words chosen by the legislature, absent an amendment to the legislation, cannot carry the burden of third respondent’s case in that it covers a restrictive set of circumstances, namely a reasonable expectation of a renewal of that which had previously governed the employment relationship, namely a fixed term contract which had previously been enjoyed, which had now expired and, by virtue of the factual matrix created, at best, a reasonable expectation of a renewal.’

To what extent is the practice manual of the labour court binding on all parties and the labour court?

The institution of review proceedings does not suspend the operation of an arbitration award unless security is furnished to the satisfaction of the court in terms of s145(8) of the LRA.  On what basis did the labour appeal court recently resolve the conflict between various labour court judgments interpreting the stay of enforcement of arbitration awards pending review proceedings?

What are the requirements to be met for s158(1)(c) of the LRA to be applicable (dealing with the jurisdiction of the labour court) to make an arbitration award or settlement agreement an order of court?