Article 43/2021

Labour Edge

What is the non-exhaustive list of factors to be taken into account to determine whether or not an employee has a reasonable expectation of renewal?

In Pikitup Johannesburg (Soc) Ltd v Muguto and Others (2019) 30 SALLR 186 (LC), such list was identified to include:

  1. the terms and conditions of the contract (see IMATU and Others v City of Johannesburg Metropolitan Municipality and Others [2014] 6 BLLR 545 (LAC), at paragraph [34]);
  2. the past practice of renewals or extensions;
  3. the nature of the work and the reason for fixed term contract arrangements (see v Mediterranean Woollen Mills (Pty) Ltd v SACTWU 1998 (2) SA 1099 (SCA); [1998] 6 BLLR 549 (A));
  4. any assurances or undertakings by the employer that the contract would be renewed/extended; and
  5. the failure to give reasonable notice of non-renewal of the contract.

In this case, the fixed term contract entered into between Pikitup and Muguto had been renewed on no less than four occasions, from its inception on 24 July 2008 until 15 April 2015, when Muguto had been informed of the final extension.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.