14 April 2022

A recent Labour Appeal Court decision held that where an employee on a fixed term contract mistakenly is allowed to works after the expiry of the contract, this does not mean that the employee becomes a permanent employee.

The Court held that the matter had to be decided on a careful consideration of all the facts.  The case in question is Gauteng Provincial Legislature v Commission for Conciliation, Mediation & Arbitration & others (2022) 43 ILJ 616 (LAC).

However, this decision is contrary to the decisions in two (2) other cases where it was held that if the employee was allowed to work after the expiry of the fixed term contract basis amounted to a tacit renewal of the employee’s contract of employment on a permanent basis. 

The two (2) cases are:

  1. Department of Agriculture, Forestry and Fisheries v Teto and Others (CA8/2019) [2020] ZALAC 19 (28 May 2020) ;  and
  2. Owen & others v Department of Health, KwaZulu Natal (2009) 30 ILJ 2461 (LC).

So the situation is somewhat confusing but there is some light at the end of the tunnel for employers who mistakenly allow fixed term contracts to continue working without a new formal contract coming into being. 

Les Owen


14 April 2022

I thought you may be interested in the Constitutional Court matter which concerns an employer’s right to making significant changes within the Company to meet external challenges. 

Frequently when a business sees the needs to make changes which affect employees, employees through their Trade Unions or Shop Stewards resist accepting such changes. 

The question is can such employees be dismissed?

The answer rests in the Constitutional Court’s decision in the matter of National Union Of Metal Workers Of South Africa and Others v Aveng Trident Steel (A Division Of Aveng Africa (Pty) Limited) and Another CCT178/19

To quote from the judgement:

“Restructuring entails a number of possibilities, including shift system duties; adjusted remuneration; and merging of jobs or duties. Generally, businesses that adapt quickly will survive and prosper. Those that do not will decline and fail.”

The simple answer is yes, particularly where the proposed change has as its objective the saving of jobs within the business.

Les Owen


26 January 2022

A critical, and some say, burning issue in our country relates to employees who refuse to be vaccinated. 

Some employers have made a policy decision on the issue.  These policies state that employees will be allowed to enter the employer’s workplace if: 

- The employee has been properly vaccinated against Covid-19;  or

- The employee can produce evidence that the employee has tested negatively for Covid-19. Generally, this allows the employee to attend work for between five (5) the seven (7) days following the test. 

Employees who refuse to do either a) or b) have several options available to them. 

1. Options for the Employee

1.1  Employee’s Option 1:  

The employee may refer a dispute to the CCMA in terms of Section 10 of the Employment Equity Act (55 of 1998). 

The basis for this referral is that the employee is alleging that the employer is unfairly discriminating against the employee.  This discrimination is in contravention of Section 6 of the Employment Equity Act. 

1.2  Employee’s Option 2

Alternatively, the employee may refer a dispute to the CCMA in terms of Section 64(4) of the Labour Relations Act (66 of 1995).  The basis for this is that the employee would allege that the employer had unilaterally changed a condition of the employee’s employment. 

If the CCMA fails to obtain an agreed resolution of this dispute, the employee would be allowed to proceed on a lawful strike. 

2.  Options for the Employer

2.1  Employer’s Option 1:

If the employee decides to stay home and not attend work in terms of paragraphs a) and b) above, the employer has the option of doing nothing, i.e. not dismissing the employee. 

This will keep the employee in the employ of the employer.  The employee will thus not be able to proceed to the CCMA and allege an unfair dismissal as no dismissal has taken place.  In addition, the other conditions of employment to the employee should be maintained, e.g. employer contributions to benefit funds. 

2.2  Employer’s Option 2:

The employer’s second option would be to dismiss the employee on the grounds of incapacity, i.e., the employee is not capable of performing the job for which the employee was employed.

Recently an employer decided to implement this incapacity option and dismissed an employee who refused to be vaccinated.  The employee referred her dismissal to the CCMA.  The matter was not resolved at conciliation.  A CCMA Commissioner was appointed to arbitrate the fairness of her dismissal.

The dismissed employee argued that she had a right to bodily integrity in terms of Clause 12(2) of the South African Constitution.  She did not believe that the Covid-19 vaccination was good for her and there were no guarantees that it would not be harmful to her. 

The employer argued it had a duty, an obligation to protect the health and safety of all its employees.  Unvaccinated employees who could not prove they were continually Covid-19 negative endangered the health and safety of their employees who had been vaccinated. 

In addition, individual employees have a duty of care towards their fellow employees.  This means that the health interests of the community of employees is more important than an individual employee’s needs. 

The Commissioner accepted the employer’s arguments and decided that the employee’s dismissal was fair.  Employers and unvaccinated employees should be made aware of this decision. 

But remember, the CCMA does not set precedents.  To make this decision a precedent which binds all employers and employees, the matter would need to proceed to the Labour Court. 

Please contact our offices should you have queries on this issue. 

Article by Les Owen