There is a commonly-held belief among employees and certain HR practitioners that a fixed-term employment contract becomes permanent after a certain number of renewals. This article examines whether or not there is any truth to this.
There are two provisions of the Labour Relations Act that are relevant to this issue.
Firstly, section 186 of the Labour Relations Act defines the notion of “dismissal”. This definition is important because it is only if an employee is dismissed, that he or she may pursue an unfair dismissal claim against the employer.
The definition of dismissal includes a provision (in section 186(1)(b)) that dismissal means that an employee reasonably expected the employer to renew a fixed-term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms or did not renew it at all. In other words, where there was a reasonable expectation of renewal which the employer did not fulfil, this may constitute a dismissal.
Secondly, section 198B of the Labour Relations Act was introduced into our law as part of the amendments which came into effect on 1 January 2015.
The section provides for additional protections for fixed-term employees where the following conditions are met:
Section 198B(3) provides that provides that an employer may only employ an employee on a fixed-term contract or on successive fixed-term contracts for longer than three months if the nature of the work for which the employee is employed is of a limited or definite duration or if the employer can demonstrate any other justifiable reason for fixing the term of the contract.
Section 198B(5) provides that “Employment in terms of a fixed-term contract concluded or renewed in contravention of subsection (3) is deemed to be of indefinite duration.”
The effect of these sections is that a fixed-term employment contract becomes permanent automatically if:
If those conditions are met, the employment is deemed to be indefinite unless the employer can demonstrate any other justifiable reason for fixing the term of the contract.
Examples of justifiable reasons for fixing the term of the contract, include situations where the employee:
Where the employer is unable to advance a valid ground of justification, the fixed-term employment contract becomes permanent automatically.