Page 4 - KZN Business Sense 10.4 - Jay Patel - Ebook

DID THAT FIXED-TERM CONTRACT REALLY END?

Johan van Deventer, KZN to conduct a multi-faceted the client’s will, or at the client’s event lies in the sole judgment Even if the employment
Regional Manager, analysis to properly exercise a discretion? (In other words, or discretion of the client. A contract is held to have been
LabourNet value judgment as to whether does the client determine when commissioner will need to assess validly terminated, a hearing
the automatic termination of a the trigger event occurs?) the extent to which the event relied would still be required to
he use of contract amounted to dismissal STEP 2 – Consider whether upon by the client to terminate determine if a dismissal
fixed-term or not and proposed the following the work to which an employee occurred on grounds of a
Tcontracts approach as a guideline: section 198 applies has been assigned, is objective, or reasonable expectation of
of employment Par 44 to 56 of the Judgment sets Does the matter fall within whether it is closer to the will or renewal or extension.
(FTCs) is out the following: the scope of Section 198, 198A whim of the client. Termination ■ Whether the employee claims
commonplace and/or 198B of the Labour of a particular employee’s contract that the termination decision
in employment The First phase in an enquiry is Relations Act (‘LRA’)? If so, the at the mere say-so of a client is was tainted by bias (e.g., the
practices determining if the ‘trigger event’ factors and requirements listed likely not to pass muster as a client demanding that a
and despite leading to the application of the in the relevant sections of these valid automatic termination of particular employee be removed
employees automatic termination clause in a statutory provisions should be employment and is more likely to from its premises) or other
agreeing and contract has occurred. considered which may determine constitute a dismissal. improper motive.
entering into such agreements The second phase of the inquiry that there was deemed permanent ■ Whether the employee claims
with eyes wide open and fully could be sensibly conducted employment of the employee STEP 4 – Consider the effect of that there were alternative
accepting the temporary nature in separate steps, along the which would support a dismissal. enforcement on the employee’s
of their employment, these very following lines: statutory rights positions available to him, or
that he was unfairly selected for
same employees still commonly STEP 3 – Consider the events The commissioner should termination, or that the
claim the natural conclusion of STEP 1 – Consider the giving rise to the termination of consider whether enforcing employer engaged others to
such agreements amount to unfair employment contract employment the termination clause, in the
dismissal or even permanent The wording and nature of the ■ What event or events triggered circumstances of the case, and perform similar work after the
termination of his contract.
employment. The reality is that employment contract should the termination of the on the application of the above
quite often these employees are be tested against the following employment contract? factors, would unfairly restrict The Court concluded that
correct. questions. ■ Are these events justified by the employees’ right to fair labour a commissioner after having
In the case of November v Kele ■ Is the duration for a specified objective and proper economic practices, the right not to be considered all relevant evidence
Mining Solutions and Others period? and commercial considerations? unfairly dismissed, or the right to and factors, and having exercised
(JR217/23) [2024] handed down ■ Is the duration and termination The closer the trigger event challenge the fairness of a dismissal. the required value judgment,
on (31 July 2024) the Labour of employment linked to the for the contractual automatic STEP 5 – Consider other will either conclude that the
Court cautioned employers and attainment of a particular goal, issues that may affect the final employee has successfully
CCMA commissioners alike not or the happening of a particular termination is linked to the determination of whether a discharged the onus of proving
occurrence of an objective (and
to rely on the express wording event, which can be objectively objectively determinable) event dismissal occurred the existence of a dismissal, or
of termination clauses in FTCs verified? (such as an agreed termination has failed to do so. 
and confirmed that parties to ■ Is the employment contract, Issues that may affect a finding
an employment contract cannot read as a whole, intended to or date, or completion of the project on whether a dismissal occurred, T: +27 (0)31 266 6570
to which an employee was
contract out of the protection does it have the effect of seeking assigned), the more likely it is that are, for example: C: +27 (0)82 786 7480
against unfair dismissal afforded to bypass the statutory the enforcement of the automatic ■ Whether the employee claims a E: johanvd@labournet.com
to the employee, whether protections against unfair reasonable expectation of W: www.labournet.com
through the device of “automatic dismissal, and/or the right termination clause will not result renewal of the fixed-term
in an unfair infringement of
termination” provisions or to challenge the fairness of a the employee’s right not to be contract. This is a self-standing
otherwise. The Court stated dismissal? unfairly dismissed. ground of dismissal in the
that a commissioner seized LRA and requires evidence
with determining whether a ■ Is the termination clause At the other end of the spectrum to be presented before a
dismissal occurred would need triggered by the exercise of are the cases where the trigger determination can be made.

TRANSFORMATIVE POWER OF AI WORKSHOP

he Minara Chamber by Nazareen Ebrahim’s
of Commerce proudly facilitation, ensuring an engaging
Thosted a highly successful and informative session for all
workshop on AI Digital participants.
Transformation on 13 August
2024 in Durban. The event was The Minara Chamber of
presented by industry expert Commerce continues to be at the
Muhammad Asmal and expertly forefront of providing its members
facilitated by Nazareen Ebrahim, with the knowledge and tools
Director of the Public Relations needed to thrive in the rapidly
and Technology Committee at evolving digital economy. 
the Minara Chamber.
For more information on this workshop,
The workshop attracted a please contact us via email,
diverse group of professionals E: kzn@minara.org.za / gtn@minara.org.za /
westerncape@minara.org.za
and business leaders keen to W: https://minara.org.za/
explore the transformative power The Minara Chamber of Commerce
of artificial intelligence (AI) in is a formally constituted organisation
the modern business landscape. formed in May 2000 , through an
Attendees were provided with initiative by the Muslim community to
create unity between businesses after
valuable insights into how AI can consultation with a broad spectrum of
drive efficiency, innovation, and the business community, and has since
growth within their organisations. grown tremendously and now serves as
a platform to represent and assist South
African businesses, entrepreneurs and
Muhammad Asmal’s professionals.
presentation was met with
enthusiasm as he delved into
the practical applications of AI,
showcasing real-world examples
of how businesses can leverage AI
technologies to stay competitive.
His expertise was complemented

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