Background

By choosing to use an agency (referred to by the court as a Temporary Employment Service, or TES) the intention of the Client (be it a company or a household) is to avoid being burdened by the human resources management aspects of recruitment, employment, remuneration and termination of such employment.

Until now, the general impression of the Client has been that if he is not happy with the performance of the employee, that the TES can be instructed to remove the employee and replace him or her with someone else.

Ground-breaking judgment

The challenge before the court was to decide on the matter within the context of the Labour Relations Act.  The provisions introduced in sections 198 and 198A of the Act are aimed to “restrict the employment of the more vulnerable, lower paid workers by a TES to situations of genuine and relevant temporary work and to introduce various measures to protect workers employed in this way”.

The judgment clarified that sections 198A and D have the effect that an employee placed by a TES shall become an employee of the Client after three months’ employment and shall enjoy all the protection of relevant legislation, amongst other Sectoral Determination 7.

Responsibilities brought about by Sectoral Determination 7 include, to;

• provide written particulars of employment
• provide payslips (implying time sheets)
• pay a fair wage equal or above the prescribed minimum wage
• register for UIF registration, and to
• apply fair labour practices.

What about fixed term employment contracts?

How does this judgment affect the situation where I employ my domestic worker on a 12 months’ fixed term contract and every year I renew the contract if I so wish?

Section 198B of the Labour Relations Act determines that an employer is ‘prohibited to employ an employee on a fixed term basis in excess of three months’.  That is, after three months, the employee is considered to be a full-time employee.

It is however also true that Section 198B(2)(b) states that Section 198B does not apply to “an employer that employs less than 10 employees…”, which includes employers of domestic workers.

HOWEVER PLEASE NOTE that this does not give employers the green light to use fixed term contracts to get rid of domestic workers and replace them at free will.

Section 186 (1) (b) makes it clear that “if an employee employed in terms of a fixed term contract of employment reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms but the employer offered to renew it on less favourable terms or did not renew it [at all]”, then it effectively amounts to a dismissal, which can only happen for reasons that legitimately warrant a dismissal.  Employees appointed on fixed term contracts will therefore be able to claim that they reasonably expected to be appointed indefinitely as a result of the behaviour of the employer.

The warning to employers is very clear to rather not embark on fixed term employment contracts for your domestic workers, unless you can do so for legitimate reasons, such as where a temporary domestic worker is employed to fill in for another employee who is on extended sick leave or maternity leave.  Other specific acceptable circumstances are outlined in section 198A.

What about foreign domestic workers?

Since we have a large number of non-citizens in South Africa working as domestic workers, it sometimes happens that employers believe they can employ ‘under the radar’ of legislation, since these workers usually have limited durations in which they can work in the country.

Employers are warned that foreigners are NOT excluded from the Laws of South Africa and they must also be registered for UIF, be paid at least the minimum wage, are subject to the terms and conditions of Sectoral Determination 7 Domestic Workers and also have access to the CCMA like any other South African citizen.

It is also very important to keep in mind that any temporary employment contract must be in writing.

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