MRL3702 EXAM ANSWERS 13 MAY 2024
QUESTION 1
S’boko and Gatedi have been working for Matswaiing-a-matsho (Pty) Ltd (MM) on six months contracts which were renewed twice for further six months. They are earning R10 000.00 a month each. They are now left with a month to complete tenures of their...
QUESTION 1
The issue in this scenario is whether S’boko and Gatedi became permanent
employees by operation of law.
The LRA offers safeguards against unjust labour practices and acknowledges that
certain contracts with a fixed duration may be converted to indefinite contracts under
certain conditions. For example, if the employment relationship continues for more
than three months and the employer does not provide permanent employment 1.
Merely renewing fixed-term contracts does not automatically transform them into
permanent contracts.
Section 186 (1) (b) offers some protection to fixed-term employees by providing that,
a dismissal can occur if an employee had a reasonable expectation that their fixed
term contract of employment would be renewed by the employer on the same or
comparable conditions. 2
While there is no automatic conversion prescribed by law, the courts have
recognized that under certain conditions, continuous renewal of fixed-term contracts
may indicate an ongoing employment relationship similar to permanent employment.
In the case of Golding v University of Cape Town and Others, the Constitutional
Court discussed on whether a sequence of fixed-term contracts could be regarded
as having undergone automatic conversion into permanent contracts. The court
ruled that a sequence of fixed-term contracts may be converted into permanent
contracts provided certain criteria are fulfilled, such as the reasonable expectation of
ongoing employment and the lack of a valid basis for not renewing the contract.
MM could raise several defences to refute Gadedi’s claims. Firstly, MM could assert
that the original agreements with S'boko and Gatedi were initially for a set duration of
six months each and were thereafter extended twice for further six-month periods. If
the contracts explicitly state their length and the purpose to employ individuals for a
certain period, MM can argue that there was no intention to establish permanent
employment. MM may argue that the contract renewals were justified by operational
requirements or the necessity for temporary employment on certain projects. MM
1
Golding v University of Cape Town and Others [2014] ZACC 27.
2
Section 188 (1) of the Labour Relations Act.
, might defend the use of fixed-term contracts and oppose the automatic conversion to
permanent status if their employment was project-based or seasonal in nature. As
evidence, MM may establish compliance with the Basic Conditions of work Act
(BCEA) by providing formal contracts that explicitly state the period of work, as
required for fixed-term contracts. MM's adherence to legal obligations reinforces the
notion that the contracts were not meant to be permanent. Finally, MM may
demonstrate adherence to the Basic Conditions of Work Act (BCEA) by issuing
official contracts that clearly specify the duration of employment, as mandated for
fixed-term contracts. MM's strict compliance with legal responsibilities supports the
idea that the contracts were not intended to be permanent.
In conclusion, while Gatedi's assertion may offer hope, MM could present valid
defenses to rebut the claim that S'boko and Gatedi have automatically become
permanent employees by operation of law. The outcome would depend on the
specific circumstances of their employment, the language of their contracts, and the
interpretation of relevant labour laws by the courts. Consulting with a legal expert
specializing in South African labour law would be advisable for both parties to clarify
their rights and obligations.
MM may be able to provide strong arguments to refute Gatedi's claim that S'boko
and Gatedi have become permanent workers by operation of law, even if Gatedi's
statement may provide a degree of hope. The result would be determined by the
particulars of their employment, the wording of their contracts, and the courts'
interpretation of the applicable labour laws.
QUESTIION 2
(i)
The issue in these facts is whether the inclusion of a clause in the employment
contracts by Lefarahatlha Clothing (LC) that prohibits employees from forming,
joining, and participating in trade union programs and activities is lawful and fair
according to international law, the Constitution of South Africa, and the Labour
Relations Act (LRA).
Various international human rights agreements safeguard the right to freedom of
association, which includes the ability to establish and join trade unions. The
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