Fixed term employment contracts : the permanence of the temporary

Abstract

The purpose of this article is to demonstrate that section 186(1)(b) of the Labour Relations Act makes no changes to the common law with regard to factors or circumstances that give rise to a right to renewal of a fixed term contract of employment. The reason for this is that what an aggrieved fixed term employee needs to prove in order to have his or her contract renewed (usually for an indefinite period), irrespective of whether the claim is based on common law or legislation, is essentially the same. The outcome is always determined by an application of the principles of fairness or reasonableness. A subjective belief or expectation, based on an objectively reasonable interpretation of the state of affairs in the light of the conduct of the employer in the surrounding circumstances, gives rise to a right of renewal in terms of both the common law and in terms of section 186(1)(b) of the Labour Relations Act. Secondly, the purpose of this article is to demonstrate that a claim for renewal of a fixed term contract on a permanent basis should be possible in terms of the Labour Relations Act if this would be fair and reasonable in the surrounding circumstances.