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Labour Law question


CogitoErgoSum
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When is an employer lawfully obliged to appoint you permanently?

 

I am contracted to the IT company I work for. Today I was given my third extension on my contract term. Some people say with your third extension, the company is obliged to appoint you permanently. Others say only after a period of a year being contracted, is the company obliged to appoint you permanently.

 

The initial period was only for 3 months, then it was extended with 6 months, then again extended for 3 months, and now for 6 months. I will be contracted for a year in May 2020.

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If there is a legitimate reason to justify rolling over a fixed term contract (like, say the completion of a contract or filling in for someone on extended leave) it is permissible for an employer to extend. But, it is not lawful to have evergreen rollovers, and it seems like this exactly what your company is doing. I think your’e entitled to a permanent appointment. In fact, I think there is a case to be made that you have already acquired the rights of a permanent employee.

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Uncle Harryn - how be you Sir.

 

Did you hedge your bets and decide to ride the "tour"?

Howzit Slowbs

 

Nah, I decided to give it a miss this year. But, now reading everyone’s excitement on the thread, and seeing the good weather predictions, I am having a lotta FOMO [emoji1304]

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Howzit Slowbs

 

Nah, I decided to give it a miss this year. But, now reading everyone’s excitement on the thread, and seeing the good weather predictions, I am having a lotta FOMO [emoji1304]

Eish - if the weather holds we should be ok, but this talk of protest has me just a bit worried

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OP,

My colleagues and I are in the same position. It has given rise to some heated debates because one of them is a hypochondriac and takes off work for the slightest of issues. He wants to get sick pay and holiday pay. But we have pointed out to him regularly that it is specifically stated in our contract that our rate includes sick and holiday pay. In other words, if he insisted on being appointed on a permanent basis, they would firstly probably let him go and secondly, if it happened, his hourly rate would drop.

 

If I may ask, are you not possibly in the same position and why do you want to be appointed on a permanent basis?

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OP,

My colleagues and I are in the same position. It has given rise to some heated debates because one of them is a hypochondriac and takes off work for the slightest of issues. He wants to get sick pay and holiday pay. But we have pointed out to him regularly that it is specifically stated in our contract that our rate includes sick and holiday pay. In other words, if he insisted on being appointed on a permanent basis, they would firstly probably let him go and secondly, if it happened, his hourly rate would drop.

 

If I may ask, are you not possibly in the same position and why do you want to be appointed on a permanent basis?

 

My need (urgency) to be appointed permanently is based on job security... I was unemployed for an extended period of time, the fact that they do not come to the table with what was discussed before, is playing with my mind...

 

Having a permanent position will also allow me to further my professional development (doing certain courses) which I need to secure my employment future.

 

I have not set any foot wrong the last 9 months, and have gone beyond what was expected (even doing work outside my KPA's). Clients are happy. I just need the certainty that I won't be left hanging. At this stage I couldn't care less about being off sick or copying your colleague's actions 

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AFAIK any casual employment for 6months is considered to be permanent even if not in writing.

 

clearlty different for you, because there's a specific contract. if they are just rollingover the same contract, then you probably have a leg to stand on and CCMA would count you as permanent.

 

BUT, if it's important enough to you I'd get some professional advice

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 his hourly rate would drop.

 

Drastically.

 

We've used several contractors in our team (we're a software dev house) over the years, on average they cost us about 30% more, a premium we'll sometimes pay for up to a year due to the decreased risk compared to having someone permanent on board. Contractors have never made up more than 10% of our numbers, it's just too expensive in the long run.

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Went through this some time back.

 

Basically the company was contracting labour to itself (legally questionable) and used this as a way of getting out of contributing to employee benefits.
When I started the only option presented was as a 'contractor' the majority of the workforce was on this programme.
I do remember there coming a point that in the eyes of the law that after a year you were considered a permanent employee with the same conditions attached.

 

Worthwhile contacting a professional labour consultant.

Some good info and contacts at https://www.uasa.co.za/

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There is no job security in this day and age...you are just one month away from being retrenched etc...with that in mind do what’s best for you.

 

Do the courses if you want, you could surely claim these back from tax if linked to your role etc.

 

As To your question, if it’s reasonable to assume that they will continue to extend yr contract and they do not you potentially have a case. Like anything legal related it’s very difficult to make a call based on a post. Also reasonable to assume if extended 3 times thT you believe it will be extended again and again.

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the term "right of expectation"sticks out from the comments on this page:

 

https://www.labourguide.co.za/contracts-of-employments/648-the-fixed-term-contract-of-employment

 

I have also been employed under the Fixed Term Agreement, and usually it means remuneration is adapted accordingly, but this is entirely up to you and your negotiation skills. It also sucks when the contract comes to an end and you were hoping for an extension, or worse, have been trying to prepare for this eventuality without success, and then you are stuck without income -been there, done that, not nice.

 

Of course, if you are in possession of an alternative employment offer when your Fixed Term Contract comes to its natural conclusion, you will have the power of negotiation. This is the best position to be in in my honest opinion, maybe try and get another offer and then gently "force" the issue?

 

Edit: for me the approach I adopted was to EXPECT that the contract would not be renewed/extended/rolled over, and I tried to find alternative employment ahead of the time. Not always easy or possible, I know.

 

From the comments on the linked page, in your situation it looks like it is clear that the situation is being abused by your employer. My advice would be to play it cool, find another opportunity and if you have intentions to stay where you are, negotiate the crap out of him. Personally, I would say screw him, if he does not care for his employees, which he is clearly demonstrating, you are probably better off elsewhere.

 

Good luck buddy!

Edited by gemmerbal
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When is an employer lawfully obliged to appoint you permanently?

 

I am contracted to the IT company I work for. Today I was given my third extension on my contract term. Some people say with your third extension, the company is obliged to appoint you permanently. Others say only after a period of a year being contracted, is the company obliged to appoint you permanently.

 

The initial period was only for 3 months, then it was extended with 6 months, then again extended for 3 months, and now for 6 months. I will be contracted for a year in May 2020.

Depends on whether you fall under the annual earnings threshold of R205 000.

 

Check s198B of the LRA - employers may appoint employees on fixed term contracts for longer than 3 months provided it is for a justifiable reason i.e project. This section is applicable if you earn below the threshold.

 

If you do, the section has a deeming provision - after 3 months, you are deemed to be permanent. If the employer cannot provide a justifiable reason, you may be deemed permanent.

 

If you earn more than the threshold, the issue at termination arises whether a reasonable expectation was created. in some cases employer are taken to task for rolling contracts and that in itself may create a reasonable expectation. Some contracts will state that no reasonable expectation is created but that in itself is not decisive.

 

Good luck - hope you get sorted.

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If a contract employee tries to use labour law to enforce a permanent employment, what is stopping g the employer from getting rid of the labour law employee first if it is time to retrench people? Last in, first out?

 

If the company can employ the staff permanently, but chooses to use contracts, is that really the sort of company ethics you want to be involved in?

 

OP, my suggestion is to not assume any job security, continue to improve yourself, keep your CV updated, and take another job somewhere else if the opportunity arises.

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