The current South African legislative framework does not properly address the
unequal bargaining position between employers and fixed term employees.
Ineffective regulation of fixed term employment in South Africa has had the effect of
excluding certain groups of fixed term employees from claiming the remedies
provided in terms of the Labour Relations Act and other labour legislation.
Furthermore, where remedies are applicable to them they are often ineffectual.
Interpretational variation evident from case law pertaining to the enforcement of the
rights of fixed term employees, indicate clear lacunae in the unfair dismissal
protection afforded to these vulnerable employees. This is mainly a consequence of
uncertainties related to the interpretation of the legislative provisions.
The infusion of the values entrenched in the Constitution of the Republic of South
Africa and the development of the common law to reflect these values might augment
the scope and availability of rights enjoyed by fixed term employees. But, changing
socio-economic and political circumstances necessitates review and amendment of
the legislation applicable to fixed term employees to meet the country’s constitutional
and international obligations.
Proposed amendments to the Labour Relations Act have been tabled. These
amendments may be capable of addressing some of the current problems. However,
they may also lead to other undesirable consequences. An investigation into
problems related to the application of similar provisions as those proposed by the
Labour Relations Amendment Bill in other jurisdictions crystallises some possible
causes for concern. Some of the proposed changes could create new vulnerabilities,
or renew old ones