Capping fixed term contracts destroying livelihoods DAVIES-NDUMISO-SIBANDA
DAVIES-NDUMISO-SIBANDA

Davies Ndumiso Sibanda

Labour Matters, Davies Ndumiso Sibanda

PUTTING a cap on the number of fixed term contracts an employee can have before they can be deemed or treated as a permanent employee has created a lot of problems and destroyed lives of many who were on fixed term contracts and had been re-engaged periodically for many years despite the thinking that it was good for employees.

Mary, a single mother of three, had worked for a supermarket on fixed term contract for the last 25 years and had managed to look after her children, two of whom are at university where she has been paying fees on a monthly basis from her wages.

Suddenly Mary saw 20 new recruits being brought in to be taught how work is done. When the recruits were one week old in the organisation, Mary and the other 19 employees were terminated at the end of their fixed term contracts.

They were told this is to comply with the NEC Collective Bargaining Agreement and were told that they will be out of employment for two months so as to break service as per CBA provisions.

At the end of two months Mary and 19 others went back to their workplace hoping to be re-engaged, but the employer shifted goal posts and said those who replaced them should serve their five fixed term contracts first and thereafter Mary and her colleagues will be considered for re-engagement.

They were also told those without 5 ‘O’ levels including Maths and English need not bother coming back. Mary and 12 of her colleagues do not have the 5 ‘O’ levels and are now in a dilemma.

The first problem was created by the union, which in my opinion agreed to a CBA that did not help their members but has led to loss of jobs.

I am of the opinion that the workers who lost their jobs would be within their rights to sue the union for recklessness in negotiating the CBA given that the implied role of the union is to ensure a fair exchange for the worker’s labour and ensuring job security.

There is no doubt in my mind that the union failed the workers in the job security component and must carry the can for recklessness.

From a legal front, employers who make employees break after the 5th contract for two months while replacing them with other employees, run the risk of falling foul of provisions of Section 12B(3)(b), which reads: “An employee is deemed to have been unfairly dismissed- if, on termination of employment contract and fixed duration, the employee-

i. had a legitimate expectation of being re-engaged; and

ii. another person was engaged instead of the employee.” This could prove very expensive for the employer if the terminated fixed term contract workers decide to litigate and argue that they had a legitimate expectation of being re-engaged and other people were engaged in their place.

In my opinion, even if the replacements were engaged before the employees left, the employer runs the risk all the same given that the court may inquire into why those replacement employees were engaged.

Moreso, given the fact that the Act does not say replacement should be engaged after the departing employee has left.

There are complex legal arguments, which could be raised around that and the employer can find himself with two employees for each position.

Further, the financial liability for unfairly dismissed employees could cripple the business.

We find guidance in the matter Care International vs Kundai Magodora SC24/14, which said it was unlawful to terminate one employee who had a legitimate expectation of being re-engaged and replaced with another. The court said: “The plain meaning of that provision is that the employee on a contract of fixed duration must have had a legitimate expectation of being re-engaged upon its termination and that he was supplanted by another person who was engaged in his stead.”

In conclusion, there are many legal and safe ways of going round any CBA just as there are ways of going around this CBA in the manner that does not destroy people’s lives and at the same time protecting the business from given risks.

All the employer needs to do is to seek professional legal advice and guidance.

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