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Retrenching employees on fixed-term contracts is now a minefield

During retrenchment exercises it has become a fairly common practice - among employers - to terminate temporary, fixed-term contracts to reduce the number of permanent employees to be retrenched. The work of those employees on fixed-term contracts is then reallocated to permanent employees. However, to ensure that your retrenchments are fair, there are a number of factors you need to take into account.


Retrenchments: Downturn in business or poor performance?

South Africa is reeling from the consequences of the prolonged platinum strike and the current strikes in the metal and engineering industry. There is no doubt that one of the very real consequences of strike action will be retrenchments as investors and employers take a stand against labour for holding them to ransom. It's likely that we'll see large scale mechanisation in those industries that are able to, which in turn, will result in many positions becoming redundant.


Dismissal of employees: complicated by definitions

When it comes to dismissal, the point of departure in the Labour Relations Act No. 66 of 1995 (LRA) appears to be straightforward: "Every employee has the right not to be unfairly dismissed" (section 185). On the face of it, it does indeed look straightforward but when the various definitions applicable to the rule are taken into account, it becomes more complex. Before the above-mentioned section 185 principle even becomes applicable, it's necessary to establish if the person concerned falls within the definition of the term 'employee' as defined in section 213 of the LRA. Why?


Constructive dismissal: subjective or objective?

Constructive dismissal is a peculiar phenomenon during which an employee's resignation is judged according to substantive and procedural fairness parameters as if it were a dismissal. It's unique in that the employee must prove a continued employment relationship was made intolerable by the employer, leaving them no choice but to resign. But is this standard of proof subjective or objective?


Dismissal for dishonesty: not a foregone conclusion

Any dishonest conduct by employees can cause an employer to, figuratively, see red. It's common for such an employer to feel that dismissal of the dishonest employee is the only safe course of action because it's believed that a person capable of stealing will steal again or will steal more in future. South African courts seem to take this to heart.