Will the renewal of fixed term contracts ever entitle an employee to claim that her employment became permanent – University of Pretoria v Commission for Conciliation Mediation and Arbitration and Others [2011] ZALAC 25

Posted: December 7, 2011 in Uncategorized
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The employee was employed in terms of a number of renewed fixed term contracts.

 

The employee was eventually offered a further fixed term contract which the employee declined on the basis as surmised by the LAC in the following terms “[o]nce an employee has established a reasonable expectation of a renewal of a fixed term contract, an obligation is created to renew this contract indefinitely on the same or similar terms, subject to a fair reason for refusing to do so. Therefore, once a contract has been renewed because there was a reasonable expectation of a renewal, taking into account the series renewal of the employee’s fixed term contract in the past, this expectation creates an obligation to renew indefinitely and, in this fashion, the obligation transforms so as to create a duty upon the employer to offer the employer a permanent contract”. [at para 16]

 

The Court, per Davies JA found that had the employee not been offered a further fixed term contract, then depending on the evidence, she could be entitled to proceed in terms of s186(1)(b) of the LRA. That would, however, not be a case based, as is this one, on a different form of employment, being a permanent contract. 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. [at paras 21 and 22].

 

One need however differentiate between a true fixed term contract and one used merely to circumvent either probation or the application of the law pertaining to dismissal

Comments
  1. Qhakazile Dlamini says:

    Im interested in this case as i intend writing my dissertation based on the effects of s186 (1) b of the LRA.

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