29-JUN-07
Govender and General Electric
SA Case No. MEGA13246
Award Date: 30 November 2006
Jurisdiction: Metal and Engineering Industries Bargaining
Council, Johannesburg
Panellist: J Stemmett
Subject: Substantive Fairness in Dismissal, Contract of
Employment
Issue:
Whether an applicant, who had been on one 12 month fixed-term employment, that was extended by three months, had a ‘reasonable expectation’ of permanent employment that would allow a claim for unfair dismissal.
Summary of Facts:
The applicant was employed by the respondent on a fixed-term 12 months contract that was renewed for a further three months and then terminated. The applicant claimed he had been unfairly dismissed because he had been given a reasonable expectation that he would be employed on a permanent basis.
Summary of Judgment:
The arbitrator noted that section 146(1)(b) of the LRA aims to ensure that employers do not circumvent the statutory limitations on the power to dismiss by keeping their employees on extended fixed-term contracts. He went on to note that although section 186(1)(b) refers to the renewal of a fixed-term contract, ‘there seems to be no reason in logic or law why an expectation of permanent employment should not provide a ground for a claim of dismissal’.
The arbitrator made the following factual findings:
• the employment contracts
clearly stipulated that employment would not give rise to
expectation of renewal but the contract was, in fact,
renewed by the respondent;
• the respondent admitted that the applicant’s contract had
been extended to give him an opportunity to ‘prove himself’,
but denied that he had been given any guarantee of permanent
employment;
• the respondent did not criticize the applicant’s job
performance at all;
• the applicant enjoyed medical aid and provident fund
benefits ‘which are usually reserved for permanent
employees’; and
• income tax was deducted from the applicant’s salary in
expectation of the thirteenth cheque that he would
eventually have been paid, had he remained in the
respondent’s employment.
Given the factual findings and the comments concerning s.186(1)(b), the arbitrator found that the applicant did have a reasonable expectation and that his dismissal was unfair.
The applicant was awarded a month’s salary (he was paid a month at termination and found employment within 3 months of termination), with no order as to costs.
