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How does disciplinary action work with fixed-term contracts and employees? Can the employer ‘carry over’ warnings from the previous contract? These questions came up recently in Scorpion Legal Protection’s Live Q&A. We take a look at what the law says.
A fixed-term contract is a contract of work for a specific period, or until a specific project has been completed. Once the date has been reached, or the project completed, the contract (and with it, the employment relationship) is ended and the employee becomes unemployed. For example, there is a backlog in admin work and the employer needs an additional admin person to help clear it. The employer hires a fixed-term employee. When the admin backlog is cleared, the contract is ended, and the fixed-term employee is no longer employed. There are no longer any employment ties between the employee and the employer.
An employer has the option to renew a fixed-term contract. However, employers are not allowed to simply ‘roll over’ contracts to avoid their statutory obligations in terms of the BCEA , the LRA and the EEA. Sometimes employers extend fixed-term contracts as a way of getting employees without having to provide them with the benefits that full-time employees are required to get by law. For example, in the case of retrenchment, a fixed-term employee does not have the right to severance pay, whereas a full-time employee does.
If an employer keeps a fixed-term employee working for them after the time agreed to in the contract or the project has been completed, and does not indicate whether the contract is renewed or not, in the eyes of the law, the employee will be deemed to be employed on a permanent basis. This means they have the same rights as permanent employees.
Fixed-term employees are subject to disciplinary measures as with other types of employees. Formal disciplinary steps include written warnings. A final written warning can be given for serious offences or where the employee has received warnings for the same offence before. Written warnings remain valid for 3 to 6 months. Final written warnings remain valid for 12 months. A warning for one type of offence is not applicable to another type of offence. In other words, a first written warning for late-coming could not lead to a second written warning for insubordination.
However, warnings cannot be carried over from one fixed-term employment contract to the next. If the employer renews the contract, it is legally as if a new contract has been concluded with the employer from scratch, and the employee’s record is wiped clean. The renewal of a fixed-term contract means the previous contract comes to an end and a new one comes into place, even if the terms are exactly the same. Warnings and other disciplinary action cannot be carried over across employment contracts. If the employer does so, it could be considered a case of unfair labour practice and the employee can approach the CCMA for help.
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If you have a query, ask Scorpion Legal Protection on Facebook and ask your question during our next Live Q&A (every first Thursday of the month).
* This is only basic advice and cannot be relied on solely. The information is correct at the time of being sent to publishing.
Date added: 13 April 2021
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