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Fixed duration agreements play a crucial role within the realm of employment, offering adaptability to both employers and workers. Nevertheless, concerns related to the prospect of secure, ongoing employment amidst fixed duration agreements have prompted inquiries into equity and legal responsibilities. The Labour Relations Act, specifically Section 186 (1) (b), tackles this matter by outlining a particular circumstance in which the non-renewal of a fixed duration agreement can be considered a termination.

Section 186 (1) (b) of the LRA constructs a framework to assess the expectations of an employee regarding the extension of a fixed duration agreement. As per this provision, a termination takes place when an employee reasonably foresees the renewal of their fixed duration agreement on comparable terms, but the employer suggests less favorable conditions or opts not to renew the agreement at all.

The underlying intent of Section 186 (1) (b) is to prevent employers from exploiting the temporary nature of fixed duration agreements. Employers are barred from keeping employees in protracted states of temporary employment without providing the stability and advantages associated with permanent employment.

The right to anticipate

A prevalent belief among employees is that consistent renewals of a fixed duration agreement over time could lead to a valid anticipation of permanent employment. However, this assumption is not always upheld in legal scenarios. For instance, in the Malandoh v SABC case, an employee who had their fixed duration agreement renewed for eight successive periods did not establish a justifiable anticipation of renewal. The court ruled that the employee’s contract did not foster a genuine expectation, and assurances made by unauthorised individuals couldn’t be enforced.

Determining the existence of a reasonable expectation of permanent employment necessitates a comprehensive evaluation of numerous elements. These elements include:

1. Stipulations and covenants within the contract.
2. Pledges and practices of the employer concerning agreement renewal.
3. Availability of tasks and their relevance to the employment affiliation.
4. Purpose and rationale behind the fixed duration agreement.
5. Inconsistent actions or demeanor of the employer.
6. Compliance with reasonable notice periods.
7. Nature of the employer’s enterprise.

While this roster of criteria isn’t exhaustive, it offers a framework to evaluate each case on an individual basis.

Case law has highlighted the intricate nature of establishing a credible anticipation of permanent employment. Successful assertions have been grounded in aspects like recurrent agreement renewals, continuous job responsibilities, and attainable financial resources. However, in cases where expectations weren’t regarded as reasonable, factors such as limited financial means and prior notification of termination played a pivotal role.

The landscape concerning the anticipation of permanent employment within the context of fixed duration agreements has encountered ongoing legal deliberations. While the legislative structure initially concentrated on fixed duration agreements, proposed amendments aim to extend the right to reasonable anticipation to indefinite employment.

Conclusion

Fixed duration agreements offer versatility in employment dynamics, yet they can also evoke concerns about the prospect of lasting employment. Section 186 (1) (b) functions as a safeguard against unjust practices, striving to harmonise the interests of employers and employees. The assessment of a reasonable anticipation of permanent employment hinges on diverse factors, demanding an exhaustive appraisal of the circumstances of each case. As the legal landscape progresses, stakeholders in the employment arena should remain watchful and well-versed regarding alterations that could influence their entitlements and duties.

Source – https://www.golegal.co.za/fixed-duration-agreements/

As an attorney practising in South Africa, I often encounter clients dissatisfied with the settlement agreements reached in employment disputes. While the Commission for Conciliation, Mediation and Arbitration (CCMA) is a valuable forum for resolving workplace disputes, it is common for parties to regret the settlement agreement terms they entered into.

The question often arises as to whether a CCMA settlement agreement can be challenged in South Africa. The short answer is yes, but the process and grounds for challenging the settlement agreement are challenging and will depend on the specific circumstances of your case.

Overview

Firstly, it is essential to understand the nature of a settlement agreement. A settlement agreement is legally binding between the parties to a dispute. It may or may not be facilitated by the CCMA commissioner. Once a settlement agreement is signed, it becomes final and binding, and its terms bind the parties. Therefore, it is essential to consider the terms of any settlement agreement before signing it.

Suppose you believe that the settlement agreement was reached, for example, under duress, fraud or misrepresentation. In that case, you can apply to the High or the Labour Court to set aside the settlement agreement. In such cases, you must provide evidence to support your claim.

Challenging the validity

A valid contract is an agreement which is binding and enforceable, thus challenging the validity pre-supposes that the legal requirements of a valid contract were not met.

Generally speaking the requirements of a legally binding agreement are:

• Consensus
• Possibility of performance
• Legal capacity to contract
• Legality
• The necessary formalities must be complied with

In the case of African Meat Industry & Allied Trade Union on behalf of Mkhungo & others and Corruseal Group & another (2) (2019) 40 ILJ 919 (CCMA), the African Meat Industry & Allied Trade Union (“the Union”) had signed a settlement agreement. The terms of the agreement, among other things, provided that the Union’s members would be deemed employees of the client.

Based on the facts, the CCMA noted that this was not a dispute concerning the wording or interpretation of the settlement agreement. Instead, the Union wanted to change the contents of the contract and have it set aside, and as such, section 24(8) of the Labour Relations Act 66 of 1995 as amended (“LRA”) was not applicable. Accordingly, the CCMA found: “In order to set the settlement agreement aside, the applicant ought to have approached the Labour Court in terms of section 77 of the Basic Conditions of Employment Act 75 of 1997 as amended (“BCEA”) or the civil courts”.

Thus either the Labour Court or High Court should be approached to decide this issue.

Undue influence

From our dictionary understanding, undue influence is when a person is induced to act otherwise than by their own free will or without adequate attention to the consequences. In the presence of undue influence, consensus (a common law contractual requirement) was never reached.

In the case of Cindi v Commission for Conciliation, Mediation & Arbitration & others (2015) 36 ILJ 3080 (LC), the employee referred an unfair dismissal dispute to the CCMA.

At the conciliation proceedings, the commissioner informed the employee that she had no prospects of success in the matter. Consequently, the applicant signed a settlement agreement. The settlement agreement was not made an arbitration award in terms of section 142A of the LRA.

On review, the Court held that a settlement agreement that has yet to be made an arbitration award under section 142A could not be reviewed.

The Court further noted that “any challenge to an agreement that has come into existence due to alleged undue influence by a commissioner lies in the common-law principles of contract, i.e., impossibility of performance; duress and/or undue influence; or misrepresentation and/or fraud”. Accordingly, the Court held that there was no basis upon which the settlement agreement between the parties could be reviewed.

Duress

From our dictionary understanding, duress means threats, violence, constraints, or other actions used to coerce someone to do something against their will or better judgment. In the presence of duress, consensus (a common law contractual requirement) was never reached.

In the case Ulster v Standard Bank of SA Ltd (2013) 34 ILJ 2343 (LC), the employee was dismissed by Standard Bank (“the Bank”) for poor performance. The employee referred a dispute to the CCMA, and the parties signed a settlement agreement at conciliation.

The Labour Court confirmed that a party who wishes to have the settlement agreement set aside would need to prove the allegation of duress on a balance of probabilities and in terms of our common law of contract. The Court found that the employee had understood the terms of the agreement and was, as a result, bound by the terms of that agreement.

Conclusion

In conclusion, while it is possible to challenge a CCMA settlement agreement in South Africa, it is essential to carefully consider the terms of any settlement agreement before signing it. For example, suppose a party is unhappy with the commissioner’s conduct in facilitating a settlement agreement. In that case, a review may be brought to the Labour Court, but this would not affect the validity of a signed settlement agreement.

The aggrieved party can only hope to set aside a settlement agreement by bringing a civil claim to the Labour Court or High Court based on the common law grounds such as the impossibility of performance, fraud, duress and/or misrepresentation.

It is advisable to seek the assistance of an experienced contract and labour law attorney to guide you through the process.

Source – https://www.golegal.co.za/ccma-settlement-agreement/

Introduction 

With so many people using different platforms to connect and exchange information, social media has become an indispensable component of our personal and professional lives. However, as we have observed more frequently over the past few years, employees must exercise caution in what they post on social media because it may reflect poorly on the business they work for (employers themselves may be held liable). Social media posts may also violate policies at work and result in dismissal. So, considering your actions before making any post is generally a good idea.

A person’s social media conduct may lead to a dismissal. An employer will first consider the severity and extent of the reputational damage. An employee’s behaviour can be linked to reputational damage. Because you still represent the company whether or not you are physically present in the workplace, many employers have zero-tolerance policies regarding remarks that are homophobic, sexist or racist. In a sense, you are an unofficial ambassador for the company/employer and an extension of it. Therefore, you risk facing disciplinary action if you publish something insulting or inappropriate on social media, even in your personal capacity, outside of working hours using your own device.

In the case of Sedick and another v Krisray (Pty) Ltd, both the operations manager and bookkeeper were dismissed for bringing the company’s name into disrepute by publishing derogatory comments about the owner of the company on Facebook. The employees claimed that the employer breached their right to privacy by accessing their profiles on Facebook. They further argued that their comments did not identify any person or organisation and could not have damaged the company’s reputation.

The commissioner found that former or current employees of the company that accessed the profiles of the two employees would have had no difficulty identifying the person they referred to in their communications. The dismissal of the two employees was therefore found to be fair. Moreover, it is evident from this case that a dismissal under such circumstances could be appropriate, provided that the employer follows the correct procedures and that the evidence used against the employee has not been illegally obtained in terms of the Regulation of Interception of Communications and Provision of Communication-related Information Act. Therefore, companies must ensure they have procedures regarding monitoring and interception of workplace communications. Developing a social media policy in addition to the company’s electronic communications policy may be required. A precise definition of “social media” and instructions on how to use these open forums must be included in such a policy.

To ensure social media conduct does not wreak reputational damage to the employer, there are vital guidelines that every employee should consider when using social media for official work purposes. First, the social media platform must be an approved site that the company uses for official work purposes. The message the company wants to convey to other users must be clearly defined. In addition, posts must at all times be legal, ethical and respectful. Furthermore, employees may not engage in online communication activities, which could bring the company into disrepute. Finally, pay particular attention to copyright laws and not disclose confidential information. Only the official company logo and branding may be used on all posts.

Conclusion  

Employers must apply a social media policy to ensure that all employees know the ins and outs of the company’s social media rules, and meetings or seminars must be held. Being transparent about the grievance processes and disciplinary codes is critical. The company’s risk of gaining a bad reputation should be as low as feasible. Having said that, a company can nonetheless discipline an employee even if it is unclear about its policies. Encourage your employer to establish social media policies.

Source – https://www.golegal.co.za/social-media-employment/