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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14862
Experience:  L.LB (UOVS)
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I have been working for a company on a series of Fixed Term

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I have been working for a company on a series of Fixed Term Contracts (5) since 02 Dec. 2011, the last of which expired at the end of June 2013. Now I have just been presented with another one up to`the end of December 2013. My problem is that before I signed the last FTC I was told that this was to allow the company enough time to advertise the position as permanent and also this would coincide with the new financial, in which the permanent position would be budgeted for. Needless to say the advert never happened, but my name has been included in the headcount of the "approved budget" that I inadvertently received in an e-mail from my HOD.
I asked for some time to look through the contract and think about my next move as I made it clear to my HOD that I feel the company is just taking advantage of me a cheap labour. Please advice!!
Submitted: 1 year ago.
Category: South Africa Law
Expert:  WCLawyer replied 1 year ago.
Good day.

This is an info request to assist you better. Please continue on this thread.

What is your main concern? The fact that the position is not permanent?
Customer: replied 1 year ago.

Yes, my main concern is that...there is also the fact that I am losing out on other employee benefits i.e pension and medical aid etc.

Expert:  WCLawyer replied 1 year ago.
So, as a matter of course, permanent employees will get these benefits, but not temporary employees?
Customer: replied 1 year ago.

Yes, this is actually stated in the contract.

Expert:  WCLawyer replied 1 year ago.
That, if you are a permanent employee, you are entitled to these benefits?
Customer: replied 1 year ago.

I don't know what it says in a permanent contract but In my FTC it states that I do not qualify for those benefits.

Expert:  WCLawyer replied 1 year ago.
Finally, have you discussed this with your employers? Are they not willing to discuss giving you the benefits you require?
Customer: replied 1 year ago.

I have asked questions around the FTC status as the contract clearly does state that I do not qualify for those benefits...my concern and my question to you is how long are they legally allowed (if that) to carry on this unfair and very abusive practice at my expense?

Expert:  WCLawyer replied 1 year ago.
1. Section 186 of the Labour Relations Act state that if the employer has created a reasonable expectation of renewal of employment and he doesn't renew the employment or he does so on less favorable terms, then this would count as an unfair dismissal. This section exists to prevent employers from shirking their responsibilities in terms of the Basic Conditions of Employment Act, especially with regards XXXXX XXXXX hearings etc. In other words, you would have exactly the same rights as a permanent employee relating to the LRA and the Basic Conditions of Employment Act if the employer has created this expectation.

It has been ruled in numerous cases that, the continious rolling over of fixed term agreements, especially if it is done as a matter of course, would create such an expression. So, in my opinion, you would have, for all intents and purposes, the same rights as per the above mentioned acts, as permanent employees.

2. Your problem, however, is that, except for overtime payment and one or two other aspects, benefits pertaining to remuniration is not dealt with in any Labour Legislation. So, you are not entitled to a pension benefit or a provident fund or something similar as a matter of law. It is something that employers negotiate with their employees. The only exception I can think of now is if you are an employee that falls under a certain collective agreement that requires employers to provide the employees that fall within that sector with those benefits. If that agreement draws a distinction between permanent and temporary employees, then clearly the bona fides of the employer is in question and you can approach the Bargaining Council for recourse to force your employer to adhere to that agreement.

3. If the above pertaining to collective agreements is not applicable, but there is a written policy in the company that says that only permanent employees will be provided with certain benefits, given that your contract has been rolled over more than five times, you may want to approach a Labour Attorney to assist you in getting you those benefits either through Labour Court or another Civil Court.

4. If no such policy exists, I am afraid that it is up to you to either negotiate such a deal with your employers, or start looking for something better.

I hope this helps you a little bit, but if you have any further questions, feel free to ask them before you rate. It will not cost you anything extra. If you are satisfied with the answer, kindly click on one of the five faces on the ratings page. I don't get anything for this answer unless you do.

WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14862
Experience: L.LB (UOVS)
WCLawyer and other South Africa Law Specialists are ready to help you

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