Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za
Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. The April 2004 newsletter contains an article giving practical guidelines on managing sexual harassment at the workplace. It also looks at three cases, one in which the employer effected a dismissal as a result of a demand by other employees, and two cases involving fixed-term or temporary contracts of employment.
This public newsletter is a free edited version of the subscriber newsletter.
LATEST CASE REPORTS
A demand for dismissal by a third party
Can an employer fairly dismiss an employee if this dismissal is called for by other employees under the threat of industrial action? In Kroeger v Visual Marketing (2003) 24 ILJ 1979 (LC) an employee shot and killed a black man (not an employee) in a road rage incident off company premises. The majority of the hourly paid employees petitioned the employer to dismiss the employee.
The Court found that the employer had not acted in bad faith and had not simply dismissed the employee to get rid of the problem. It had attempted to persuade the workforce to withdraw its petition, it had feared for the safety of the employee, it had considered placing him in another department, and the employee did appear to have a problem with black people. The Court accordingly found that the employer, faced with industrial action or mass resignation of skilled employees, dismissed the employee for a fair reason.
The case is important in providing further examples of circumstances in which conduct off premises and outside working hours is regarded as being sufficiently work related to justify dismissal.
Fixed-term contracts and the reasonable expectation test
An employee is engaged on a fixed term appointment for a specific period or until the happening of a specific event. The following questions frequently arise:
--When is it unfair for an employer to use fixed-term contracts?
--When does an employee acquire a reasonable expectation of renewal of the contract? In two recent cases, these issues were dealt with.
In Malinga & others and Pro-Al Engineering CC (2003) 24 ILJ 2030 (BCA) the employees were employed on a number of fixed-term contracts to repair equipment owned by Alusaf. At some stage the employer's tender to Alusaf was unsuccessful and the employees' employment was terminated. They claimed that they had a reasonable expectation that their fixed-term contracts would be renewed and that they had been unfairly dismissed in terms of s 186(1)(b) of the LRA. The arbitrator found that the employees were well aware of the true nature of the fixed-term contracts, and that no expectation had been created that the contract would be renewed. The employees had therefore not been dismissed, but their contract had expired.
In the second case, Biggs v Rand Water (2003) 24 ILJ 1957 (LC), the employee was a water administrator, employed on short-term contracts for almost a year. When her position was advertised as a permanent post, she applied but was unsuccessful. The post was given to an existing employee, a black woman. The employee alleged an automatically unfair dismissal and unfair discrimination on the basis of race.
In this case the Court found that the existing black employee, who already had a job, gained another at the expense of the temporary employee. The general manager, without even interviewing the two candidates, had appointed the black employee simply on the basis of her name and race. This was held to be unfair discrimination. While the employee was awarded 10 months compensation, the Court did not appoint her to the advertised post.
These cases suggest that employers need to be very explicit about why the fixed term contract is being used and repeated instead of a permanent appointment. If they do not, they run the risk of creating a reasonable expectation of the contract being renewed.
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