adminLabour Matters Davies Ndumiso Sibanda
ONE of the most popular types of employment contract with employers is the Fixed Term Contract but it is the most hated type of contract by employees and trade unions. A Fixed Term Contract is characterised by a starting and ending date or it can be task based as defined in Statutory Instrument 15 of 2006. However, other than in construction and mining, task-based Fixed Term Contracts are rare.
Many workers do not understand the meaning of a Fixed Term Contract and as a result on termination they raise a lot of claims that cannot be sustained legally.
Where an employee has been re-engaged several times by the employer, each Fixed Term Contract signed is independent of the others signed and extinguished earlier.
Meaning that when there is a dispute over contractual obligations by the employer, the basis of the dispute will be the last valid contract and the service of the employee is as long as the last valid contract.
It is the service issue that many workers do not understand as they wrongly think it is counted from the first engagement on the Fixed Term Contract thus making a claim of long service.
A Fixed Term Contract employee cannot claim permanence by being re-engaged several times by the same employer even if the employee has been on fixed term contact for over 20 years or more.
It is at times painful to see a worker going for arbitration claiming permanence after termination of a Fixed Term Contract simply because he has been re-engaged several times on Fixed Term Contract only to be told that his claim cannot be sustained.
For a claim of permanence to be sustained, there must be evidence that the employer made the offer and it must not be assumed.
There are also cases where employees claim an expectation to be re-engaged at the end of the Fixed Term Contract.
Again this is not a simple matter as the Labour Act is clear in section 12(2)(B) and (3)(B) where the expectation only arises when the employee’s contract is terminated and another legal issue to be addressed such as evidence of the legitimate expectation which could be difficult to prove for the employee.
Many employers however have a clause in the Fixed Term Contract that says employees should not read an expectation of being re-engaged written into the contract. Once an employee signs such a contract, the expectation of being re-engaged can no-longer arise.
There are many other contractual issues that are mentioned in many Fixed Term Contracts such as how overtime will be paid, leave will be compensated and others. It is important for workers to read these clauses as they are binding to both parties even if they may seem to be unfair.
Workers need to make any contractual claims at the end of each Fixed Term Contract so as to avoid clouding issues when they try to make claims covering many Fixed Term Contracts that extinguished. More-so, any claims more than 2 years cannot be sustained at law due to prescription.
In conclusion, contracts are not as simple as they look and workers need to seek appropriate legal advice before raising claims against the employer to avoid wasting time and money. Further, some Fixed Term Contract provisions are protected by NEC collective bargaining agreements and internal policies meaning these have to be read into the contracts.
Davies Ndumiso Sibanda can be contacted on: E-mail: [email protected] Cell: 0772 375 235
Bongani Moyo
Online Reporter