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March 2014

/March 2014

March 2014

RENEWAL OF FIXED –TERM CONTRACT

Where an employee has been allowed to remain in his employment for a period after the expiry of the term of his fixed- term contract, that contract will be considered to have been tacitly renewed for an indefinite period. Therefore, any termination of the employment which follows amounts to a dismissal. Employers are warned to ensure that fixed-term contracts are terminated on the last day of the agreement.

THE INDEPENDENT CONTRACTOR VS EMPLOYEE

Where the employee is not precluded from performing work for other organizations or does not place his full productive capacity at the employer’s disposal, the CCMA has held that this would be an

independent contractor relationship. The Labour Relations Act has created a right for the employer to rebut the assumption of employment.

ENFORCEMENT OF ARBITRATION AWARDS

The Labour Court has held that an employee’s right to enforce an Arbitration Award prescribes after 3 years which is in line with the common law and the Prescription Act. This is despite the fact that the Labour Relations Act refers to principles of fairness and equity.

FORMATION OF AN EMPLOYMENT CONTRACT

The Labour Court in two separate decisions sought to distinguish between the creation of an employment relationship and other types of services which may be rendered. The first was a joint venture agreement where one partner alleged that an employment relationship was created with the other partner, this argument was dismissed by the Court. It stated that partners could not serve one another in an employer / employee relationship. The other was where a manager purported to appoint
a consultant into a permanent position where she lacked the authority to do so. The Court quite correctly stated that without the necessary authority the manager lacked the capacity to act on behalf of her employer.

OPERATIONAL REQUIREMENTS – ARBITRATION

Where a single retrenchment has taken place the CCMA has held that it has jurisdiction to arbitrate the unfair retrenchment dispute even though it may be uncertain whether only a single employee had been retrenched that provided consultations in terms of Section 189 (3) had been initiated.

2018-10-28T14:40:01+00:00March 13th, 2018|