As we enter 2014, and in an effort to keep our clients appraised
of current developments within the industrial legal landscape, the
Labour Team has undertaken to supply regular updates to clients, as
and when there appears to be a need to do so.
Arising from developments at the tail-end of 2013, and at the
onset of this new year, it is probably critical for employers
making use of temporary staff, to pay attention to the following
expected statutory amendments, under the Labour Relations Amendment
Bill of 2013 (expected to be signed in to law this year):
Staff earning below the ministerial threshold (currently R 193
805-00 per annum), appointed on fixed-term contracts for longer
than three (3) months, will be deemed to be permanent,
unless there is a justifiable reason for limited duration
employment, as listed under Section 198 B.
Temporary staff, appointed through a Temporary Employment
Service (TES), will be deemed to be the employees of the TES
client, should the duration of employment exceed 3 months, unless
the appointment is as a substitute for a temporarily absent
employee (Section 198 A).
Typical to the construction industry, and flowing from Section
198 B, employers who employ fixed-term staff for a specific project
(as a justifiable reason to exceed 3 months) will be liable for
severance pay of 1 week's wages per annum, if the period of
employment exceeds 24 months. Currently, under the BCEA, severance
pay applies only upon termination of employment, for operational
Under Section 198 B and C, although "part-time
employment" is distinguished from "fixed-term
employment", both categories require employers not to
treat such staff less favourably, when compared to permanent staff,
unless there is a justifiable reason for doing so. (It is
interesting that probationary employment, which has no prescribed
time-limits, as a species of temporary employment, is still
retained under the amendments).
Commercially, the new Bill obliges responsible employers to:
Carefully assess the extent to which their current staff
complement potentially could result in deemed permanent
Perhaps take advantage of the more limited protection afforded
to fixed-term staff under the current provisions of the LRA, by
implementing non-renewals, where necessary. Under the current law,
employees bear the onus of establishing the existence of a
dismissal, by having to demonstrate a reasonable expectation of
renewal, which the employer can still prove to be fair, on the
grounds of misconduct, performance or operational
Carefully revise and align the structure and content of their
existing fixed-term contracts of employment, in accordance with the
Restructure their temporary employment methods by implementing
part-time employment contracts, where necessary, as opposed to
fixed-term contracts (since Section 198 C now expressly recognises
Taking the above proactive approaches is in all probability the
more prudent position for employers to take.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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