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    Ivan Israelstam

    Section 198 B (4) of the LRA specifically provides for nine circumstances that justify the employment of employees on fixed term contracts. While probation was initially proposed as a tenth justification for fixed term employment, probation was omitted when the LRA amendment act was promulgated in 2014.

    Would it be in the interests of the economy, employees and employers for probation to be included as a circumstance that justifies the employment of employees on fixed term contracts?

    Michael Bagraim

    Although Section 198B of The Labour Relations Act gives 9 justifications for conclusion of fixed term contracts these justifications are not limited in any way and certainly it appears that the 9 justifications are merely guidelines. However, I don’t believe that probation would be a justification for a fixed term contract. In essence probation is a specific written clause entered into between employer and employee in order to justify a set of circumstances to endorse permanent or even short term employment. The reality is that probation could be added into fixed term contracts or any contract of any nature culminating in employment on a permanent basis. Probation in our law is specifically incorporated into contracts to enable parties to assess whether the contracts ought to become of a permanent nature or of a specified term of employment. This probationary clause would allow parties to explore their suitability to each other. Probation itself comes with various plights and duties, this must be adhered to in order to ensure that the probationary clause is properly implemented.

    My experience has been that probation has to be included in all contracts whether they be of a specific term or of a permanent nature. The fixed term contract will still have to be justified in terms of Section 198B regardless of the introduction of a probationary clause. Michael Bagraim

    Yes I think it can be used as a justification- but not in the strict sense of 198B. Although a probationary trial period does not fit any of the 9 justifications, there’s no reason in principle why an employer can’t use a 3-month FTC to test the employee’s performance – and thus use it as a probationary period. The 198B justifications don’t apply in the first 3months – so the parties can contract on terms they agree.

    It gives the employee the same chance to prove his or her value as a probationary period would – and it’s less risky for the employer. Patrick Deale


    Should Probation be a justification for Fixed term employment?

    This query is raised in light of a relatively new section 198B which came into force on 1 January 2015 under the Labour Relations Amendment Act (No.6 of 2014)(LRAA).

    In terms of Section 198B ‘fixed term contract’ is defined as a contract of employment that terminates on the occurrence of a specified event; the completion of a specified task or project; or a fixed date, other than an employee’s normal or agreed retirement age.

    Section 198B does not apply to employees who earning in excess of the threshold prescribed by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act; an employer that employs less than 10 employees, or that employs less than 50 employees and whose business has been in operation for less than two years, unless the employer conducts more than one business; or the business was formed by the division or dissolution for any reason of an existing business; and an employee employed in terms of a fixed term contract which is permitted by any statute, sectoral determination or collective agreement.

    In terms of section 198B, an employer may employ an employee on a fixed term contract or successive fixed term contracts for longer than three months of employment only if the nature of the work for which the employee is employed is of a limited or definite duration; or the employer can demonstrate any other justifiable reason for fixing the term of the contract.

    In terms of this section, the conclusion of a fixed term contract will be justified if the employee is replacing another employee who is temporarily absent from work; is employed on account of a temporary increase in the volume of work which is not expected to endure beyond 12 months; is a student or recent graduate who is employed for the purpose of being trained or gaining work experience in order to enter a job or profession; is employed to work exclusively on a specific project that has a limited or defined duration; is a non-citizen who has been granted a work permit for a defined period; is employed to perform seasonal work; is employed for the purpose of an official public works scheme or similar public job creation scheme; is employed in a position which is funded by an external source for a limited period; or has reached the normal or agreed retirement age applicable in the employer’s business.

    Employment in terms of a fixed term contract concluded or renewed and which cannot be justified is deemed to be of indefinite duration.

    I dont believe that probation is a justification for a fixed term contract of employment. Probation is a period within which a newly employed employee is employed for in order to assess if that person is adequately able to perform the job. If so them the person will be placed on a full time employment contract.

    A period of probation does not in our view fall within any of the categories, albeit examples only- set out above.These examples however do give a strong indication that the period is expected to be of a temporary period and in order to meet or satisfy a particular need which is temporary in nature and which does not justify the employment of a full time employee.

    Probation, in our view is not a temporary post or an employment of a person to meet or satisfy a short term requirement. To the contrary, it is rather to ensure the employee can do the job and if so such person will be placed under a full time employment contract.

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