Monday, 24 April 2017

Reasonable expectation of a permanent position

As a point of departure there can be referred to the case of Dierks v University of South Africa which specifically dealt with section 186(1)(b) of the Labour Relations Act (LRA) which deals with the reasonable expectation of an employee and more specifically, whether it entitles an employee to secure a permanent position. A person who is employed on a fixed term contract generally has two expectations to take into account, being that the contract will be renewed or that he/she will secure permanent employment.

When considering the wording of section 186(1)(b) it becomes evident that it only applies to one of the above mentioned expectations, being the first mentioned. Very importantly the court in the Dierks case held that having a fixed term contract renewed a couple of times, does not automatically have the consequence of being appointed permanently, nor does it create that expectation.

The above decision was placed into dispute in a further case of McInnes v Technikon Natal, where the exact opposite was held. The latter case focussed on the nature of the expectation and whether it was reasonable to expect permanent employment and if so, that dismissal would be unfair on that basis. The position was placed into more uncertainty after the Auf der Heyde v University of Cape Town case decided that the approach initially followed in Dierks was correct and thus that section 186(1)(b) does not include a reasonable expectation of permanent employment. And would thus not result in an unfair dismissal.

The question thus arises as to what is the current position after all the uncertainty created above.

There is unfortunately, as yet, not concise answer, as it can still be argued that there is no reason why a reasonable expectation of a permanent employment should not be covered by section 186(1)(b) which is based on the fact that the purpose of the provision is to prevent employers from keeping employees on fixed term contracts.
The fact of the matter is that as a minimum, an employee’s expectation of renewal of his/her contract will be protected as is further cemented in the case of SA Rugby v CCMA, but whether such an expectation of permanent employment falls under the specific section remains arguable.