Premature termination of fixed-term contracts of employment on grounds of operational requirements

Abstract

This study focuses on the interaction between common-law grounds and statutory grounds for the premature termination of fixed-term contracts of employment on grounds of operational requirements. The study investigates the application of the permissible grounds for premature termination of fixed-term contracts of employment, both contractually and in terms of the “fairness” principle as enshrined in the Constitution.

Both common-law remedies and current labour legislation is still applicable to modern day contracts of employment. In the face of overlapping or competing statutory rights, the courts uphold common-law rights. A parallel regime has effectively been established – one of employment law, based on statute, and one on the common law.

The purpose of this dissertation is to assess whether the South African application of legal principles in relation to the premature termination of fixed-term contracts of employment due to the operational requirements of the employer passes scrutiny when compared to the norms of the International Labour Organisation (“the ILO”) as well as foreign law

Considering the complex legal framework involved in the employment relationship –particularly the contract of employment, which is subject to the law of contract on the one hand and to the labour legislation on the other – the question arises as to whether it should be permissible to prematurely terminate a fixed-term contract of employment on grounds of operational requirements of the employer and which Court has the required jurisdiction to determine same.

In conducting the study a doctrinal research method and a social justice (human rights) perspective was followed. This study assesses relevant legislation, case law and principles in the South African context, with the view of providing recommendations to address any shortcomings. The study also comprises of comparative research to assess whether the South African model complies with international law obligations.

In the conclusion and recommendations it will be confirmed whether the South African approach to the premature termination of fixed-term contracts of employment remains valid, and whether there are any aspects or approaches that can be varied to ensure greater compliance with South Africa’s international law obligations.

In the conclusion and recommendations it will be confirmed whether the South African approach to the premature termination of fixed-term contracts of employment remains valid, and whether there are any aspects or approaches that can be varied to ensure greater compliance with South Africa’s international law obligations.