TEMPORARY WORKERS HAVE RIGHTS TOO

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Temporary workers have rights too
Tony Healy

06 September 2007 at 06h00

The retrenchment of temporary staff differs significantly from the retrenchment of permanent staff. Sections 189 and 189A of the Labour Relations Act (LRA) apply to the retrenchment of temporary and permanent employees alike.

However, when faced with the prospect of retrenching a temporary employee, due consideration must be given to such employee's common law right not to have the temporary contract of employment terminated prematurely. A temporary contract of employment that is silent on premature termination prohibits an employer from terminating the contract for reasons other than misconduct or incapacity.

It would, for example, be deemed unfair to retrench an employee prior to the end of a temporary employment contract in the event that the contract does not specifically provide for such early termination. The Labour Appeal Court (LAC) addressed this issue in Buthelezi v Municipal Demarcation Board [Case No JA37/2002]. In this case, the applicant, a deputy manager of financial operations, had been employed on a fixed-term contract for five years.

Prior to the completion of this set period, however, he was retrenched. The matter was originally heard in the labour court, where it was held that the retrenchment of the applicant had been substantively unfair. The reasoning was that the dismissal during the currency of the fixed-term contract rendered such dismissal unfair.

The appellant was, however, not awarded compensation for the remaining period as it was held that he had committed an act of misconduct in the interim, which would have rendered him liable for dismissal. The applicant subsequently approached the LAC in an appeal against the whole of the LC judgment. The LAC held that the retrenchment of the appellant prior to the expiry of the fixed-term contract had been substantively unfair in all respects.

The judge held further as follows: "I conclude that the respondent had no right in law to terminate the contract of employment between itself and the appellant. "The termination of such contract before the end of its term was unfair and constituted an unfair dismissal". The appellant was awarded three months' salary as compensation, as he had found employment at a higher salary elsewhere subsequent to his retrenchment.

The learnings from this case are quite simple. Lengthy contracts of temporary employment run the risk of being the subject of a retrenchment process at some stage, as do short-term temporary employment contracts, albeit to a lesser degree. Given the implications of the common law rights of temporary employees as addressed in the above case, it is essential that temporary employment contracts unambiguously provide for the prospect of premature termination of the contract for operational requirements reasons (eg: redundancy and retrenchment). This would all but eliminate a retrenched employee's claim for damages on grounds of the employer's purported common law breach.

Book to attend a "Lawful Discipline and Dismissal" workshop on September 20 by phoning 011-476-1620. Alternatively, send an e-mail to healy@global.co.za