If an employee earns below the R205 433 per annum threshold, the onus shifts to the employer to prove that there was a justifiable reason for a fixed-term contract longer than three months. If the employer cannot do this then the employment is deemed indefinite. The case of Mageni /South African Bureau of Standards – (2019) 28 CCMA 7.1.5 illustrates this point.
The employee was employed as one of the employer’s general managers on a five-year fixed-term contract. When the contract expired, he claimed that he had been unfairly dismissed because he had reasonable expectations that it would be renewed.
The Commissioner at the Commission for Conciliation, Mediation and Arbitration noted that initially there was some confusion over whether the employee was claiming that he had been allowed to work beyond the date on which his fixed-term contract expired.
It was clarified that he was relying solely on section 186(1)(b) of the Labour Relations Act (reasonable expectation of renewal). Where such a dismissal is claimed, the reasons for the employer’s decision not to renew the contract must be examined and the employee must prove that a reasonable expectation of renewal had been created by the employer. The employee had relied on an e-mail from his line manager – dated a year before – the contract was set to expire and asking him whether he was willing to extend his fixed-term contract.
The Commissioner found that this message did not constitute an offer and was not enough to create a reasonable expectation of renewal. The employee had indicated in correspondence that he knew his fixed-term contract would come to an end. The employee had been given no further indication that his fixed-term contract might be renewed.
Since the employee had failed to prove that he subjectively believed that the contract would be renewed, there was no need to consider whether the expectation was objectively reasonable.
The application was dismissed.
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