Inequality in Equality

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INEQUALITY IN EQUALITY
JUDITH GELDENHUYS*
Senior Lecturer,Departmentof MercantileLaw, UNISA
I INTRODUCTION
The lack of efficient labour legislation has been cited by the International
Labour Organisation ('ILO') as being the principal cause of the negation
of rights enjoyed by atypical employees in South Africa.1 The prejudice
suffered by this vulnerable group has long been recognised. 2 The African
National Congress specifically undertook to ensure that legislation
would be enacted to avoid exploitation of these workers. 3 Nevertheless,
before the recent interventions, 4 little had been done to ensure that fixed
term employees, part-time employees and employees who are employed
to perform temporary employment services are treated equitably in the
5
workplace.
* LLB LLM (UP) LLD (UNISA). With gratitude to the reviewers for their valuable inputs
and valid criticism.
'International Labour Organization (ILO), 'NEDLAC Republic of South Africa Decent
Work Programme 2010 to 2014' (2010) 10, available at http://www.ilo.org/wcmsp5/groups/
public/@dgreports/@integration/documents/genericdocument/wcm 145432.pdf, accessed
on 2 October 2015. In this contribution, the term 'atypical employee' is used to denote
temporary employees, employees employed on fixed term contracts and workers employed by
labour brokers. Even though independent contractors also fall within the classification
of 'non-standard' work, they would logically also fit comfortably within the definition of
,atypical employees'. However, as the main South African labour legislation expressly
excludes independent contractors from its operation, save for the exceptional instances where
independent contractors are mentioned in passing, a discussion of the remedies available
to independent contractors falls beyond the scope of the discussion.
2 See the statement made by the Department of Labour in the 'Green Paper on Labour:
Minimum Standards Directorate Policy Proposals for a New Employment Standard Statute'
(13 February 1996), available at http://www.info.gov.za/greenpapers/1996/labour.htm#
Executive. Although there are exceptions to the rule, such as high-income employees
appointed on a fixed term basis, atypical employees are often more exposed to abuse. The
legislative amendments discussed in this contribution were enacted with the particular goal of
addressing these inequities.
' African National Congress, 'ANC 2009 Election Manifesto', available at http://
www.anc.org.za/docs/manifesto/2009/manifesto.pdf, accessed on 2 October 2015.
4 The Employment Equity Amendment Act 47 of 2013 and the Employment Equity
Regulations, 2014 came into effect on 1 August 2014 (GN R16 in GG 37238 of 16 January
2014). The Basic Conditions of Employment Amendment Act 20 of 2013 and its regulations
that were published on 29 August 2014 came into operation on 1 September 2014 (GN 987 in
GG 37139 of I September 2014). The Labour Relations Amendment Bill, 2012, was assented
to by the President on 18 August 2014 (See the Proclamation of the Labour Relations
Amendment Act 6 of 2014 in GG 37921) and it came into operation on 1 January 2015 (See the
Proclamation in GG 38317 of 19 December 2014).
1 Sections 198A to 198D were inserted into the Labour Relations Act 66 of 1995 ('the LRA')
for this specific reason. See the motivations provided for the inclusion of the various
(2016) 28 SA MERC LJ
The Labour Relations Amendment Act 6 of 2014 ('LRA Amendment

6
Act') introduced regulatory measures in respect of atypical employees.
Several months have passed since the LRA Amendment Act has become
operational. 7 Early in 2015, it was predicted that there will be an influx of
review applications to the Labour Court resulting from the legal reform.
It was also predicted that the new introductions in the reform would lead
to many judicial reviews, because there are not many people who possess
the knowledge and experience to deal with them." Nevertheless, the
Commission for Conciliation Mediation and Arbitration ('CCMA') and
bargaining councils have not been inundated with unfair dismissal
and equal treatment claims involving atypical employees as expected. 9
Consequently, there has also been little opportunity to see whether
attorneys, labour consultants and even CCMA commissioners and
judges are properly equipped to handle these matters.
After briefly highlighting the underlying constitutional and interna-
tional law obligations, some obstacles to access to justice brought about
by the provisions in the new amendments that apply to atypical
employees are identified. 10 Where possible, case law in point is consid-
ered. Why atypical employees may be reluctant to even attempt to
enforce their new rights becomes clear when the remnant and newly
introduced anomalies in the quest for the achievement of equality
between permanent employees and atypical employees are uncovered.
mechanisms in the Memorandum of the Objects of the Labour Relations Amendment Bill
2012, 21-27.
6 The new heading for Chapter IX of the LRA is 'Regulation of non-standard employment
and general provisions'. The provisions that follow these headings (s 198) were introduced to
specifically apply to atypical employees. Even though the equal pay provisions in s 6 of the
Employment Equity Act 55 of 1998 ('the EEA'), the regulations that have been passed under
them, and the codes used to properly interpret and apply them also apply to standard
employees, and not only to atypical employees, they remain relevant in respect of certain
atypical employees who earn above the threshold amount, as well. Consequently, a brief
reference to equal pay as provided for in the EEA is apt.
I The LRA Amendment Act became effective on 1 January 2015. Several provisions that will
be considered in this contribution, particularly in respect of atypical employees who were
already employed before the LRA Amendment Act was enacted, only became effective on 1
April 2015. In this regard see s 198A(4B)(b), 198A(9), 198B(8)(b) and 198C(4) of the LRA
Amendment Act.
I See the statement made by Levy in Karl, 'South African labour: CCMA braces for extra
work from law reforms', available at http://www.bdlive.co.za/national/labour/2015/0l/27/
ccma-braces-for-extra-work-from-law-reforms, accessed on 18 August 2015.
9 According to the CCMA's Annual Report there was an increase in workload of only 1%,
which the Commission attributed to the opening of two new regional offices. See the
2014/2015 Annual Report, available at http://www.ccma.org.za/UploadedMedia/
CCMA%20ANNUAL%20REPORT%202015.pdf, accessed on 5 October 2015.
" Although cursory suggestions are put forward in places, further research is planned to
find solutions to the problems that are identified.
II EQUAL TREATMENT IS CONSTITUTIONALLY

MANDATED
The Constitution of the Republic of South Africa, 1996 ('the Constitu-
tion') is moulded to the International Covenant on Civil and Political
Rights, which expressly states that '[a] 11persons are equal before the law
and are entitled without any discrimination to the equal protection of
the law'. " Various pieces of legislation have been enacted, among other
things, to ensure that workers are treated as equals, and equitably in the
workplace. 12
South Africa is a signatory to ILO Convention No 100 of 1951 on
equal wages for men and women who deliver work of equal value. This
Convention requires that all member states that ratified it, must13
establish measures to ensure equal pay for equal work performed.
South Africa has also ratified ILO Convention No 111 of 1958 that
prohibits workplace discrimination.
The interpretation to be afforded to the labour legislation should
accord with South Africa's international law obligations. 14 In addition,
national legislation should be construed in a way that underscores the
constitutional values, and that best gives effect to the purpose of
the particular piece of legislation.' 5 It is clear that in terms of interna-
tional obligations and the national legislation that was enacted to give
effect to the constitutional right to fair labour practices, 16 the labour
forums have an obligation to ensure that the law is interpreted equitably
and applied equally to all who are entitled to its protection.
A significant purpose for the introduction of the amendments is to
address the inequalities that exist between atypical workers and those
who are employed permanently in the workplace.17 Although the LRA
Amendment Act has made huge strides in formalising legal principles to
regulate atypical employment relationships, the Constitution requires
not only that such legislation must exist, but also that the legislation
enacted in order to resolve labour disputes must be effective. If a piece of
Article 26 of The Covenant on Civil and Political Rights, available at http://

www.hrweb.org/legal/cpr.html, accessed on 5 October 2015. South Africa ratified this
instrument on 10 December 1998.
12 Sections 9 and 23 of the Constitution; the Promotion of Equality and Prevention of
Unfair Discrimination Act 4 of 2000 ('PEPUDA') and the Employment Equity Act 55 of 1998
('EEA').
" Article 2(1).
14 Section 39 of the Constitution. See also s 3(d) of the EEA and Mangena & others v Fila
South Africa (Pty) Ltd & others (2010) 31 ILJ 662 (LC) para 5.
'5 Section 3 of the LRA.
6 Section 23 of the Constitution.
Memorandum of the Objects of the Labour Relations Bill 2012, 1.
legislation, or a provision in it, has the effect of limiting the right to

access to justice, this limitation must be justifiable under the limitation
clause 8 as contained in the Constitution. The fundamental rights in the
Constitution, including the right to fair labour practices, can only be so
restricted if a compelling reason exists to do so. 19 What follows is an
expos6 of various obstacles in the face of achievement of equitable
treatment of atypical employees in the amendments that were recently
introduced.
III NO OVERARCHING LEGAL DEFINITION EXISTS FOR

DIFFERENT CATEGORIES OF EMPLOYEES
An atypical employee is an employee that does not fit the ordinary
description. Standard employment in South Africa is permanent, full-
time employees who work on the employer's premises until they retire.20
Atypical employees may either be 'direct' employees (part-time and
fixed term employees) or 'indirect' employees where more than one
employer or client is involved (labour broking, outsourcing and subcon-
2
tracting). 1
The Labour Relations Act 66 of 1995 ('the LRA') is the chief legislative
measure for regulation of the labour relationship in South Africa.
Although the country's labour force comprises both permanent, full-
time ('standard employed' employees) and non-standard employees, no
definitions for the various types of atypical employee are included in the
LRA. Nevertheless, the LRA makes it clear (in section 213 thereof), that
this piece of legislation applies to all employers and employees and to the
State. Further, it expressly excludes the application thereof to indepen-
dent contractors which, strictly speaking, would also fall within the
definition of 'atypical employee'. 22 The LRA in clear terms also excludes
from its operation persons working for the South African National
Defence Force, the National Intelligence Agency, the Secret Service and
23
the Academy of Intelligence.
IS Section 36 of the Constitution.

'9 Sections 34 and 36(2) of the Constitution; S v Manarnela2000 (3) SA 1 (CC) para 32.
20 Theron, 'Employment is not what it used to be' (2003) 24 IndustrialLaw Journal1247 at
1249; Cheadle, 'Regulated flexibility: Revisiting the LRA and the BCEA' (2006) 27 Industrial
Law Journal 1186 para 126.
2 Grogan, Workplace Law 11 ed (Juta 2014) 22; NUM & others v Billard Contractors CC &
another [2006] 12 BLLR 91 (LC) para 79.
22 Section 213 of the LRA.
The new definitions that are introduced for purposes of the newly
introduced section 198 of the LRA 24 could unintendedly serve as barriers
to access justice, and make the attainment of social justice more difficult
for atypical employees than it is for standard employees. These dispari-
ties are highlighted further below.
(a) Section 198 defines 'fixed term contract'

An interesting departure from the previous statusquo in the legislation is
introduced in section 198 of the LRA Amendment Act. For purposes of
this provision, 'fixed term contract' is defined for the first time. But,
instead of providing more legal certainty and better protection for fixed
term employees, the new inclusion has many unintended negative
effects.
For purposes of section 198B of the LRA, the concept of 'fixed term
contract' is defined as a contract that terminates once a specific event
takes place; 25 upon the completion of a particular task or project; or on
26
an agreed upon date and not upon the employee's retirement.
Notably, the definition is not applicable to other sections besides
section 198. This could prove problematic, particularly because no
definition is provided for purposes of the unfair dismissal protection for
fixed term employees, 27 despite the fact that it expressly requires the
existence of a fixed term contract.
(b) Certain atypical employees are excluded from the new

protection mechanisms although they qualify as
'employees'
Only persons who fall within the classification of 'employees' as defined
in the legislation are eligible for the protection that is provided in terms
of the LRA. The term 'employee' is described in the LRA as including
persons working for someone else or for the State, and who receives
remuneration for their services, or is entitled to receive pay, and those
28
assisting such persons in the performance of work.
24 The concept 'temporary service' is used in s 198A(1) to identify who would qualify for
the protection under s 198A. In s 198B(1) 'fixed term contract' is defined for purposes of
s 198B only. The only definition that is provided specifically to cover a category of atypical
employee, and notably only for application in respect of that particular provision, is the one
for 'part-time employee' in s 198C(a) of the LRA Amendment Act.
25 See for instance Fidelity Supercare Cleaning (Pry) Ltd v Busakwe NO & others [2010] 3
BLLR 260 (LC).
26 Section 198B(l) of the LRA Amendment Act.
27 Section 186(1)(b) of the LRA.
There has been extensive development in the jurisprudence in as far as

the interpretation of section 213 of the LRA is concerned. It is trite that a
purposive approach should be followed in construing provisions con-
tained in the LRA as a piece of social legislation that was specifically
enacted to give effect to the right to fair labour practices that is
entrenched in section 23 of the Constitution.2 9 As a result, the courts
tend to interpret the definition of 'employee' broadly so as to extend as
wide as possible the net of protection that is provided by the LRA. Even
workers who do not fit easily within the ordinary definition of employee
have been afforded the LRA's protection. 30 Likewise, if an employment
contract is concluded, but will only become operational later, the worker
would be entitled to the remedies in the LRA. 31 The same goes for
persons who are engaged in relationships that the court considered of a
32
nature akin to a labour relationship.
The definition of 'employee' as contained in section 213 of the LRA
excludes independent contractors from the protection provided by the
labour legislation. Despite the modern nuances that may exist in the way
in which working relationships are arranged, this is something that
remains unchanged. The court has on various occasions decided on the
differences between 'employees' and independent contractors, and
33
developed tests to establish whether this exclusion is applicable.
Despite the fact that a statutory presumption has been adopted in
order to assist the court in this exercise,3 4 and that guidelines have
been issued to determine who qualifies as an 'employee', 35 the case law
on how to establish the difference between an employee and an
29 See the preamble to the LRA and s 3(a) of the LRA. See also Chirwa v Transnet 2008 (4)
SA 367 (CC) para 110 where the Constitutional Court indicated that in the event where there
is more than one plausible way to interpret a provision, effect should be given to the one that
upholds the primary aims of the LRA, rather than one that does not.
" Discovery Health Ltd v CCMA & others (2008) 29 ILJ 1480 (LC) at para 42; 'Kylie' v
CCMA & others (2010) 31 ILJ 1600 (LAC) para 22.
1 Wyeth SA and TManqele (2005) 26 ILJ 749 (LAC) para 52.
32 See for instance SANDUv MinisterofDefence [207] 9 BLLR 785 (CC) para 24; See also Le
Roux, 'The meaning of "worker" and the road towards diversification: Reflecting on
Discovery, SITA and "Kylie"' (2009) 30 IndustrialLaw Journal49.
" SABC v McKenzie (1999) 20 ILJ 585 (LAC); Niselow v Liberty LifeAssociation ofAfrica Ltd
(1998) ILJ 752 (SCA); Smit v Workmen's Compensation Commissioner 1979 (1) SA 51 (A);
South African Master Dental TechniciansAssociation v DentalAssociation of South Africa 1970
(3) SA 733 (A); Workforce Group (Pty) Ltd v CCMA & others (2012) 33 ILJ 738 (LC) paras 5-6;
State Information Technology Agency (Pty) Ltd v CCMA & others (2008) 29 ILJ 2234 (LAC)
paras 10-16; Denel (Pry) Ltd v Gerber (2005) 26 ILJ 1256 (LAC) paras 18-21.
14 Section 200A of the LRA and s 83 of the Basic Conditions of Employment Act 75 of
1997
('BCEA'), respectively.
- 'Code of Good Practice: Who is an Employee?' GN 1774 in GG 29445 of 1 December
2006.
independent contractor is still often confusing and contradictory. 36 The

modern business practices in a changing world of work may so have the
effect of excluding the availability of remedies under the main labour
legislation.
(c) There may be overlaps between different categories of

atypical employees
It is possible that an employee can fall into different categories of atypical
employees simultaneously, which could complicate access to justice. It is
for instance possible for someone to qualify as a fixed term worker, and
a part-time employee at the same time: if someone is appointed for a
period of six months, but he or she is not required to work all working
hours, and he or she is paid an hourly wage. If he or she is not paid
hourly, that would probably make him or her only a fixed term
employee. Likewise, someone can be appointed through a labour broker.
or an agency to perform work for a client for a specific task, or until the
completion of a specific project, or for a specific period. This would.:
mean that the employee could be performing a temporary employment
service in terms of a fixed term contract for purposes of section 198 of
the LRA. It may also happen that what starts out as a fixed term contract
37
can be converted into a part-time contract.
In such a case, an employee would no longer qualify as a fixed term
employee, and he or she would have to refer a claim under a different.
provision of the LRA. Although all of these categories of atypical
employees are covered in section 198, a choice will have to be made
whether the claim is formulated under section 198A, 198B or 198C. If
the matter is referred incorrectly, it could conceivably become a defence
for the employer.
IV A QUALIFICATION THRESHOLD IS SET

Section 198 of the LRA only applies to atypical employees who earn
below the threshold amount that is determined by the Minister of
Labour. 38 Section 198 does not apply to small employers that employ ten
or fewer employees, or to those who have fewer than 50 employees, but
that has not yet been in operation for two years, unless the employer has
36 Vettori, The Employment Contractand the Changed World of Work (Ashgate Publishers
2007) 11.
" Section 198C(1)(a) of the LRA Amendments Act. For purposes of s 198C, 'part-time
employee' is defined as someone who ispaid with reference to the time that he or she works,
and who works fewer hours than someone comparable who is appointed on a full-time basis
38 The earnings threshold that is set in terms of s 6(3) of the BCEA is currently R205 433,30
per year. Notably this amount is adjusted annually on 1 July and it is linked to inflation.
more than one business, or the business has been divided. It also does
not apply to employees employed on a fixed term basis if the arrange-
ment is permitted by legislation, a sectoral determination or in a
collective agreement.3 9 Section 198C(c) does not apply to persons who
usually work for the employer for fewer than 24 hours in a month. 40 The
operation of the entire section 198 is excluded within the first three
41
months in which the employee works for the employer.
A regulatory impact assessment that was done in respect of the
amendments as they were proposed in 2010 indicated that the reason for
setting the earning threshold was to ensure that the CCMA will have
capacity to assist particularly the vulnerable, less fortunate employees.
Higher- earning employees are excluded, as it is suggested that they are
in a better bargaining position in relation to their employers to negotiate
42
remedies contractually.
The 'earnings' for purposes of assessing whether an employee earns
below the threshold amount means the regular gross pay that an
employee received before deductions are made in respect of income tax,
provident fund contributions by the employee, medical aid contribu-
tions that the employee pays, etc. All contributions that are made by the
employer in respect of the employee are deducted from the annual
earnings amount. In addition, subsistence and transport allowances,
performance bonuses and overtime pay, are not included in the annual
43
earnings total.
It is unclear whether when assessing the amount of earnings, only
earnings received from the particular employer will be considered. If a
fixed term or part-time employee has more than one source of income,
he or she may not wish to disclose it, as it may place his or her cumulative
earnings above the threshold amount, and render him or her outside of
the sphere of legislation protection. In any event, determining whether
an atypical employee is eligible for the protection provided for which the
'9 Section 198A(2), 198B(2) and 198C(2) of the LRA Amendment Act.
40 Notably, this follows the example in the BCEA in which these workers are excluded from
the sections regulating working hours. See s 6(1) (c) of the BCEA.
4' Section 198A(2), s 198B(2)(a) and s 198C(2) of the LRA.
42 Bhorat & Cheadle, 'Labour Reform in South Africa: Measuring Regulation and a
Synthesis of Policy Suggestions' Development Policy Research Unit University of Cape Town
2010 PB 10-27 at 115, 118, available at http://www.dpru.uct.ac.za/sites/default/files/sites/
default/files/DPRU%20PB%2010-27.pdf, accessed on 26 August 2015. See also the Depart-
ment of Labour 'Memorandum of the Objects of the Labour Relations Bill 2012', available at
http://www.labour.gov.za/downloads/legislation/bills/proposed-amendment-bills/
memoofobjectslra.pdf
('Memorandum of the Objects of the Labour Relations Bill 2012') 21, accessed on 8 August
2015.
" See the explanation in Government Gazette 37795 of 1 July 2014.
earning threshold applies would require the performance of a means

test. Means testing has proven to be a very unsuccessful endeavour in as
far as it has been applied in respect of social security grants. The system
requires administrative capacity, and it is notoriously susceptible to
fraud and corruption. 44 It is questionable whether the already strained
CCMA 45 will be able to bear the brunt of these added responsibilities.
V SEPARATE PROVISIONS REMAIN OR ARE

INTRODUCED FOR THE PROTECTION OF ATYPICAL
EMPLOYEES
Treating fixed term employees differently to permanently appointed
employees is one of the institutional inconsistencies that have been
adopted by employers and presiding officers in labour forums alike. It is
commonplace for employers to terminate their employment without
giving them notice as required in terms of the Basic Conditions of
Employment Act 75 of 1997 ('BCEA'). Those who are dismissed for
operational reasons are often denied severance pay. 46 If they claim
unemployment insurance to which they are entitled after termination of
their services, this could even exclude the possibility of succeeding in an
unfair dismissal claim as it may be considered as a factor negating
an expectation of continuation of employment with the employer if they
47
do claim.
A disconcerting statement was discovered in notes that were placed
on the CCMA website for use by its commissioners in applying the new
amendments. A remark is made to the effect that section 198B of the
LRA Amendment Act has the effect of making fixed term employees who
are employed for a period exceeding three months, 'entitled to the same
" Olivier, Smit & Kalula, Social Security: A Legal Analysis (LexisNexis Butterworths 2003)
163.
" Section 198D of the LRA places the burden of resolving disputes referred to it in terms of
s 198 on the CCMA and bargaining councils having jurisdiction.
46 See for instance Khumalo & others v Supercare Cleaning [2000] BALR 892 (CCMA)
897D-F; SACCAWU obo Makubalo & others v Pro-Cut Fruit & Veg [2002] 5 BALR 543
(CCMA) 545E. However, see the recent decision in Public Servant Association obo Mbiza v
Office of the Presidency & others [2014] 3 BLLR 275 (LC) where it was held, and in my view
correctly so, that the remedy of compensation, when applied to fixed term employees should
not be limited only to the amount that would be payable so as to extinguish the remainder of
the term of his or her appointment. With reference to s 195 of the LRA, the Labour Court
found that the compensation award could include additional compensation to any other
amount to which the employee would be legally entitled.
4" See Hlatswayo and KwaDukuza Municipality (2012) 33 ILJ 2721 (BCA) in which the fact
that the fixed term employee did not claim unemployment benefits were viewed as support of
his claim that he entertained a reasonable expectation of continued employment.
remedies for unfair dismissals as those applicable to indefinite employ-

ees'. 48 This confirms the fact that these atypical employees suffered a
history of systemic disadvantage, not only in the workplace, but also in
the way in which their labour disputes were resolved.
The inclusion of a separate provision that applies specifically to fixed
term employees in itself imports a crevasse in the law that applies to these
atypical employees when compared with the law applicable to standard
employees. Section 186(l)(b) of the LRA, which is made applicable only to
fixed term employees, is viewed as, and dealt with by labour forums, as
a special type of dismissal. 49 The fact that a separate provision is
introduced in respect of each type of atypical employee in the LRA, leads
to duplicity in remedies and legal uncertainty. This is elaborated on
further below.
(a) Only fixed term employees require a 'fixed term contract'

before they enjoy protection
Before the introduction of section 198, there were no prescribed
formalities for the conclusion or for the renewal of any type of
employment contract.5 0 The BCEA only requires that an employer must
provide an employee with written particulars that indicate the basic
terms of his or her working arrangement.5 Although it is still not a
general requirement for contracts of employment to be concluded in
2
writing,5 it is now a legal requirement for a fixed term offer of
4 CCMA '2014 Case law monitor' 114, available at http://www.ccma.org.za/

UploadedMedia/Case%20Law/20for%20Commisioners%20november%202014.pdf,
accessed on 27 August 2015.
'9 This section has been described as being part of the protection measures falling outside
the ordinary meaning of dismissal. Grogan, Workplace Law (Juta 2014) 170-171; Fedlife
Assurance Ltd v Wolfaardt (2002) 22 ILJ 2407 (SCA) paras 58-59; Sindane v Prestige Cleaning
Services (2010) 31 ILJ 733 (LC) 740 and note 3 therein.
50 Grogan, Employment Rights (Juta 2014) 56. However, the author mentions certain
exceptions when formalities are prescribed in terms of other legislation, such as employment
contracts concluded in terms of the Merchant Shipping Act 57 of 1952.
"' Section 29 of BCEA. For fixed term contracts, s 29(1)(m) of the BCEA requires inclusion
of the termination date.
52 Unlike the case in respect of other types of contracts, for instance for the alienation of
immovable property (see s 2(1) of the Alienation of Land Act 68 of 1981) no prescribed
formalities exist for conclusion of a valid employment contract. No comparable provision is
included in the LRA or any other labour legislation. An employment contract can therefore be
concluded in writing, verbally or even tacitly. Temporary employment services must provide
employees working for them with written particulars as required in the BCEA, but there is no
requirement that written contracts have to be concluded with them. In this regard see
s 198A(4B) of the LRA Amendment Act. See also SouthgateBlue IQ Investment Holding(2012)
33 ILJ 2681 (LC) paras 21, 32. In this case (paras 41-42) it was held that in the particular
circumstances of the case even if the parties had agreed that the contract would be put in
writing, it is not a requirement for the validity of the contract.
appointment and renewal/s to be effected in writing. 53 However, no

consequence is attached to non-adherence to this principle. 54 What
would happen if an employee continued working for the employer and
the employer had neglected to comply with the formalities for renewal?
Before the introduction of this new requirement, a fixed term
employee who was allowed to continue working would have been
considered an employee, and the fact that the employer allowed him or
her to continue working would have contributed towards the acceptance
by the court that a reasonable expectation of continuation of the
employment relationship existed. 55 For instance, in Denel (Pty) Ltd v
Gerber56 in which the Labour Appeal Court held that the formal contract
that was concluded between the parties did not preclude it from
determining the true nature of the relationship between the parties
objectively by applying the 'reality test'.
But, with the new definition and requirements in respect of renewals
and continuance, another argument can be raised. If uncertainty exists
relating to the nature of the employment relationship - that is, under.,
which definition it would fall - the labour forum would have to
consider the agreement that had been reached by the parties in order to
assess what their intention was upon conclusion. In case of ambiguity in
the written contract, the contra proferentum rule would usually dictate
that the contract be construed in a way that prefers the employee, as it is
usually the employer who drafts the agreement. 57 However, what is
evidenced by the written document will not in all events reflect the true
relationship.
In addition, requiring formalities may influence the evidentiary
burden. In Phera v Education Labour Relations Council & others58 the
Labour Appeal Court decided that, if a worker commences to work
before complying with the formalities - in that case having received the
required written permission to do so from the Department - taking up
" Section 198B(6) of the LRA Amendment Act.

" Employers are often disinclined to comply with legal requirements where no penalty
applies in case of non-adherence. Employers are required to provide employees with written
particulars of employment in terms of s 29 of the BCEA. Nevertheless, they often do not
comply. Stats SA, 'Quarterly Labour Force Surveys', available at http://www.statssa.gov.za/,
accessed on 8 October 2015.
" See for instance Owen & others v Department of Health KwaZulu-Natal (2009) 30 ILJ
2461 (LC) 2465-2466; NEHA WUobo Tati and SA GovernmentAssociation (2008) 29 ILJ 1777
(CCMA) 1783-1784; Vorster v Rednave Enterprises CC tia Cash Converters Queenswood
(2009) 30 ILJ 407 (LC) para 17.
56[2005] 9 BLLR 849 (LAC).
" Nkopane & others v Independent Electoral Commission (2007) 28 ILJ 670 (LC) paras 53,
73-74; De Paauw & Living Gold (Pty) Ltd (2006) 27 ILJ 1077, 10771-J.
58 (2012) 33 ILJ 2839 (LAC).
the employment duties would not in itself mean that an employment

relationship had come into operation. In similar vein, in Cloud Haman-
dawanaand Dispute Resolution Centre & others5 9 Lagrange J stated that,
in an instance where an employee alleges that he or she is appointed
permanently, but where this had not been confirmed in writing, the
burden of proof would rest on the employee.
The definition of 'fixed term contract' when read with the require-
ment that each offer of employment has to be made in writing, as well as
the unfair dismissal protection 60 for fixed term employees, requires the
existence of a written fixed term contract. Section 186(1)(b) of the LRA,
which is the only protection available to fixed term employees claiming
to have been dismissed unfairly, requires that the referring party must
have been appointed under a fixed term contract. Strangely, section 198
does not require the conclusion of a written fixed term contract.
However, in the absence of a written fixed term contract that is properly
signed by both parties, a fixed term employee could potentially be left
remediless.
The fact that there is no stipulation regarding the enforcement of the
requirement in section 198B(6) in the LRA Amendment Act, could have
another unintended negative effect: In case of non-compliance, affected
fixed term employees would probably request the written reasons for
having been appointed on a fixed term appointment only once the
employment relationship has begun to deteriorate. This would not only
negate the possibility that the employees can resolve the matter amicably
internally, but it could also provide employers with an opportunity to
formulate a new reason which may not have existed upon the employee's
appointment.
(b) The section for the protection of fixed term employees

against unfair dismissal is oddly worded
The LRA, after its amendment, determines that a dismissal of a fixed
term employee would have occurred if:
,an employee employed in terms of a fixed term contract of employment
reasonably expected the employer-
(i) to renew [the] contract on the same or similar terms but the employer
offered to renew it on less favourable terms, or did not renew it; or
(ii) to retain the employee in employment on an indefinite basis but
otherwise on the same or similar terms as the fixed term contract,
Case no C649/2012 (5 November 2013) para 18.4.

60 Section 186(1)(b) of the LRA.
but the employer offered to retain the employee on less favourable

6
terms, or did not offer to retain the employee.' 1
The extension of the application of section 186(1)(b) of the LRA is
intended to bring an end to the debate regarding the scope of application
of this unfair dismissal provision. 62 But including a separate provision
relating to indefinite 'retaining' does not answer the question. Can a
fixed term employee claim to have had expected to be appointed
indefinitely and/or temporarily at once? In some decisions is has been
held not to be possible for an employee to expect both a temporary and a
permanent appointment at the same time. 63 At least on two occasions,
the facts of the case made it clear that it is indeed possible to expect to be
kept on in the workplace permanently, or at least until the person who
64
the fixed term employee had been replacing returns. By dividing
section 186(1) (b) into two sub-divisions, it enforces the proposition that
a fixed term employee would be restricted to claim that he or she
expected either for the fixed term contract to be renewed temporarily, or
indefinitely, but not both.
The courts and tribunals have expressed the view that the concept
same or similar terms' in section 186(1)(b) - which is notably
maintained and repeated in the new parts of the section - excludes the
possibility of renewal of a fixed term contract on improved terms. In
Tshabalala and North-West University6 5 it was decided that 'same or
similar terms' could not be construed in a way to include an appoint-
ment to a more senior position. The contract must also not be concluded
for a different term than the original contract, or be one for a different'
purpose. 66 However, the inclusion of 'or similar' suggests that the
renewal need not necessarily be made on precisely the same terms. It is
conceivable that 'similar terms' could refer to other aspects of the
contract touching on the nature of the employment. This notion was
supported by Grogan and Vettori before the amendments were intro-
duced. 67 Hopefully, this will also be the interpretation that will be
favoured in the labour institutions when interpreting the new provision.
6 Section 186(1)(b) of the LRA as amended.

62 Memorandum of the Objects of the Labour Relations Bill 2012 at 1(e), 16.
63Nobubele v Kujawa (2008) 29 ILJ 2986 (LC) para 50; Mclnnes v Technikon Natal (2000)
21 ILJ 1138 (LC)1142F-J.
64 See Dierks v University of South Africa (1999) 20 ILJ 1227 (LC)and Mclnnes above.
65 (2007) 28 ILJ 1204 (CCMA).
66 SA Rugby (Pry) Ltd v CCMA & others (2006)27 ILJ 1041 (LC)para 25.
67 Vettori, 'Fixed term employment contracts: The permanence of temporary' (2008) Stell
LR at 206-208. See also Grogan, Workplace Law (Juta 2009) 150.
(2016) 28 SA MERC L
Otherwise, the clumsy wording of the section could potentially lead to

repeated injustices.
(c) Unfair dismissal protection applicable to fixed term

employees is not automatically available and it would not
necessarily be an unfair dismissal
In order for an employee appointed in terms of a fixed term contract to
claim based on unfair dismissal, several underlying jurisdictional criteria
apply. First, the applicant must be an 'employee'. 68 Second, a fixed term
contract must have been concluded. In the absence of a complete, signed
fixed term contract the remedy provided for in section 186(1)(a) of
the LRA should be used instead. 69 Third, he or she must bring the
application within the prescribed time frame. 70 Lastly, it has to be
proven that a dismissal had occurred. If any one of these factors are not
proven, the CCMA or bargaining council would have no jurisdiction to
entertain a dispute referred to it in terms of section 186(l)(b). Whereas
several of these jurisdictional factors apply equally to standard employ-
ees and other types of atypical employees, the onus of proof that is made
applicable to fixed term employees, is indisputably more onerous.
Whereas access to unfair dismissal protection is immediate for
indefinitely appointed employees, that is not the case for employees who
are appointed on a fixed term basis. The mere non-renewal of a fixed
term contract is not a dismissal. 71 This is so, despite the fact that it
arguably falls quite comfortably under the auspices of the ordinary
dismissal provision. 72 The ordinary dismissal provision, which applies
to standard employees, applies in instances where an act or an omission
that is performed by the employer is the direct (proximate) cause of the
termination of an employee's employment. 73 In the case of a dismissal of
a fixed term employee the proximate cause of termination of employ-
68 See for instance Avgold- Target Division v CCMA & others (2010) 31 ILJ 924 (LC) paras 1,
4.
69 See NCAWU obo Mapande v Siyaphambili Adult Education Centre NC1583-06. How-
ever, compare Cloud Hamandawana and Dispute Resolution Centre & others Case no
C649/2012 paras 16, 18, available at http://www.saflii.or/za, accessed on 2 October 2015.
70 Section 191(2A) of the LRA. See alsoAvgold- Target Division v CCMA & others (2010)
ILJ 924 (LC). If the dispute is referred before the notice of non-renewal is received, it would be
premature and the CCMA or bargaining council would lack jurisdiction to entertain the
matter.
" Cohen, 'When common law and labour law collide - Some problems arising out of the
termination of fixed-term contracts' (2007) 19 SA MercLJ26 at 41-42.
72 Section 186(l)(a)of the LRA.
73 OuwenhandvHoutBayFishinglndustries(2004) 25 ILJ 731 (LC) para 15; National Union
of Leather Workers v BarnardNO & another (2001) 22 ILJ 2290 (LAC) para 21; Chilwane v
CarlbankMining Contractors(JS 11/2010) [2010] ZALC 120 para 15.
ment is the employer's act and/or omission: the employer fails to renew
the contract after having created the expectation that this would be
done. Despite the fact that it appears to be the employer who bears the
evidentiary burden in unfair dismissal cases involving fixed term
employees in that proof regarding the reason for the appointment or 74
renewal of employment on a fixed term basis has to be produced,
a fixed term employee would still have to prove the existence of a
reasonable expectation before the employer's conduct would qualify as
a dismissal.75 Fixed term contracts lapse without consequence, unless
the employer does something to create an expectation in the fixed term
76
employee's mind that his or her employment would continue.
In England, not renewing a fixed term contract automatically consti-
tutes a dismissal. The burden of proof rests on the employer who must
prove that the decision that was taken not to renew the contract was fair
and reasonable. The employer also has to show that, before the decision
was taken to terminate the contract, the employee was consulted and
77
that a fair procedure for termination had been followed.
In South Africa, the unfair dismissal provision for fixed term employ-
ees also does not determine that, even where the employee reasonably
expected to be kept on, it would constitute an unfair dismissal. It only
determines that it would qualify as a dismissal. In other words, it
remains possible for the employer to raise other defences and to indicate
that the dismissal was nevertheless fair. 78 In a recent CCMA award, 79 the
commissioner argued that determining that a reasonable expectation
was created that employment in terms of a fixed term contract would
71 Section 198B(6) of the LRA Amendment Act.

" Section 186(1)(b) of the LRA as amended requires that the fixed term employee must
have 'reasonably expected' that the employer would keep him or her on in employment (or
retain him or her) either temporarily or indefinitely. See also De Milander v Minister of the
Executive Council for the Department of Finance:Eastern Cape & others (2013) 34 ILJ 1427
(LAC) para 35.
76 Sindane v Prestige CleaningServices (2010) 31 ILJ 733 (LC); Laas v Blue Disa Trading 310
CC (2010) 31 ILJ 2120 (LC). A contract with a stipulated termination date terminates
automatically through operation of law on the agreed upon date and the termination would
not constitute a dismissal.
7 Section 95(1) (d) of the Employment Rights Act of 1996.
78 Other reasons justified in terms of s 188 of the LRA must have existed. See Olivier, 'Legal
constraints on the termination of fixed term contracts of employment: An enquiry into recent
developments' (1996) 17 Industrial Law Journal 1005 at 1029. See also Dierks v University of
South Africa para 16; Ntambanana Municipality and Xolani CaesarMzobe & others (Report-
able LC judgment) para 7(d), available at http://www.justice.gov.za/labourcourt/dgm-lbc/
20131bc/D810-10.pdf, accessed on 8 October 2015; SACTWU v MediterraneanWoollen Mills
(Ply) Ltd [ 1995] 3 BLLR 24 (LAC) paras 25-26; Van Biljon v Bloemfontein TransitionalLocal
Council (1999) 20 ILl 2481 (CCMA) 2483.
7' APSA obo Thulelo Makola and University of South Africa Case no GATW3984-15 (29 July
2015).
continue beyond the initially agreed upon termination date, was the end
of the enquiry regarding the fairness of the dismissal. In the award it is
surmised succinctly that
'Axiomatically, [after having determined that a reasonable expectation
existed that] there cannot be procedural or substantive fairness in such
situations, because the respondent [employer] in this case was of the view
that the contract had ended through the effluxion of time; it did not hold
the view that a dismissal was taking place.' 8 0
Although this interpretation makes logical sense, section 186(1)(b) as
amended does not determine that if the requirements contained therein
are met, it would constitute an unfair dismissal, only that it would
qualify as a dismissal. No conceivable reason exists why the legislature
would not have included the word 'unfair' to make the law certain in
that the judicial enquiry should stop at that point.
(d) The new dismissal provision seems unnecessary and has

negative effects
This problem extends to workers employed by labour brokers. The LRA
Amendment Act determines that an atypical employee who works for a
client and who performs a 'temporary service' (in other words, works for
a period not exceeding three months) is employed by the temporary
employment service. If the employee's work does not qualify as a
'temporary service', the client is deemed to be the employer. In addition,
if the work performed is not temporary, the employment relationship is
8
deemed to be indefinite. '
If a client should terminate an employee's service in order to avoid
liability in terms of this provision, or for reasons connected to the
exercise of a right in terms of the LRA by the employee, it would
constitute a dismissal.8 2 This appears to be a new type of dismissal that
was introduced by the amendments. However, it is unclear why this
scenario would not also fit comfortably under the ordinary unfair
dismissal provision as contained in section 186(l)(a) of the LRA. Surely,
it would be termination of an employment contract, with or without
notice, by the employer. Notably, this provision also does not say that
the dismissal which it envisages would be unfair. In other words, after
having proven that the employer had terminated his or her services, and
60 Para 19. See also Dierks v University of South Africa para 16 in which this view was also
supported.
S, Section 198A(3) of the LRA Amendment Act.
82 Section 198A(4) of the LRA Amendment Act.
that this had been done with the aim of avoiding the legislation, the
employer would still be able to raise another ground of justification that
83
could render the dismissal fair.
The unnecessary duplication of remedies is contrary to the aim of the
introduction of the new unfair dismissal protection: to provide atypical
employees with additional job security. In fact, it may even detract from
the limited job security that atypical employees enjoyed previously.
Employers may be disinclined to appoint atypical employees for longer
than three months. The effect of the amendments actually evidences a
tendency to rather retrench or terminate the services of affected
84
employees.
(e) Discrimination on the basis of contractual status in

employment is not a listed ground
Different equal treatment provisions have been introduced for the
different categories of employees that comprise atypical employees.8 5 An..
equal treatment provision has also been introduced by the Employment
Equity Amendment Act 47 of 2013.86 This amendment is snuggly
positioned in section 6 of the Employment Equity Act 55 of 1998 ('the
EEA'). This section now reads:
'(1) No person may unfairly discriminate against a worker on the basis
of:
Race, gender, sex, pregnancy, marital status, family responsibility,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, HIV status, conscience, belief, political opinion, culture,
language and birth or on any other arbitrary ground
(4) A difference in terms and conditions of employment between

employees of the same employer performing the same or substantially the
same work or work of equal value, directly or indirectly based on one of
the grounds in (1) is unfair discrimination.
83 See the discussion in Geldenhuys, An Evaluation of the Rights of Fixed-term Employees in

South Africa (unpublished LLD thesis, University of South Africa, 2013) 131-132.
84 Bhorat, Magadla & Steenkamp, 'Employment Effects in the Temporary Employment
Services (TES) Sector: Post- Regulatory Amendment Effects A Briefing Note' 6, 12-13,
available at file:///C:/Users/geldej/Downloads/TES%20Job%2OLosses%2OBriefing%20Note
%20-%2OProf.%20Bhorat%20(June%202015).pdf, accessed on 6 October 2015. The study
suggests that 50% of the surveyed employees' jobs were terminated after the s 198 amend-
ments came into operation. Very few employees were appointed permanently after the
amendments became effective.
81 Section 198A(5) of the LRA Amendment Act applies to employees performing 'tempo-
rary employment services', s 198B(8) to fixed term employees, and s 198C(3)(a) applies to
part-time workers.
86 GN R16 in GG 37238 of 16 January 2014.
(5) The Minister, after consultation with the Commission, may pre-
87
scribe criteria and method to assess whether work is of equal value.'
Despite the inclusion of the concept 'arbitrary grounds' in section 6(1)
of the EEA, the distinction that is made between listed and unlisted
grounds of discrimination remains. Before the amendments were
introduced, when a claim was based on an unlisted (or arbitrary ground)
the claimant in any event had to prove that a link exists between one or
more of the listed grounds and the discrimination that had occurred. In
other words, the way in which labour institutions enforce the equal
treatment provision can potentially be much more limited than the
open-ended terminology suggests. The jurisprudence surrounding
the issue of pay differentiation which is still applied by the CCMA
supports the notion that the scope of protection will be so restricted. In
Louw v Golden Arrow Bus Services (Pty) Ltd88 it was held that paying
employees differently, even for work of equal value, would not consti-
tute an unfair labour practice. The wage differentiation must be linked
to direct or indirect discrimination on arbitrary grounds before the
employer would be guilty under the provision in the EEA. In Ntai &
others v South African Breweries Ltd 89 it was reiterated that indirect
discrimination must not only be averred, but it also has to be indicated
how the alleged discrimination would impact negatively on the preju-
diced applicant-employee's human dignity. 90
If two individuals working in similar circumstances are treated
differently, it constitutes discrimination. Differential treatment in as far
as remuneration of different employees in the workplace (pay differen-
tials) is justified based on different levels of work, different responsibili-
ties, different levels of expertise that is required for the performance of
the tasks, different experience and skill that is needed and the like. 91
Whereas the applicant employee would endeavour to prove the similari-
ties between the work performed by him or her and his or her
comparator, the employer would try to indicate how they differ. Some of
the factors that would be considered in determining whether or not two
87 Section 6 of the EEA as amended.

88 [2000] 3 BER 311 (LC).
89 (2001) 22 ILJ 214 (LC).
90 NUMSA & others v Gabriel(Pry) Ltd (2002) 23 ILJ 2088 (LC). Notably, in this case it was
held that it would not suffice to describe the differential pay as being 'disproportional,
irrational, arbitrary and capricious'.
9"Du Toit et al, The Labour Relations Act of 1995 - A Comprehensive Guide 2 ed
(Butterworths 1998) 436. This isalso one of the grounds of justification for differential pay as
set out in item 5.4 of the Code of Good Practice on Equal Pay/Remuneration for Work of
Equal Value.
(possibly very different jobs) are of equal value, could also prove very
difficult to measure.
In order to establish whether an atypical employee had been treated
unjustifiably unfairly, he or she has to be weighed and measured against
a 'comparable full-time employee' who also works for the employer and
who is performing the same or similar 92 work in the workplace, or in a
different workplace. 93 To prove the existence of arbitrary discrimina-
tion, the applicant must prove more than a possible link between a
discriminatory factor and the differentiation in treatment. 94 Indirect
discrimination would only have occurred if the atypical employee in the
context of equal treatment would be able to prove that the employer's
unfair practice affects the particular type of atypical employee dispro-
95
portionately as a group.
Unequal treatment based on employment status impacts negatively
on the dignity of atypical employees, and should constitute indirect,
discrimination. However, it would probably not suffice to prove that
the basis of the discrimination is linked only to the temporary nature
of the contract. There has not yet been a case in South Africa where an.
atypical employee had successfully referred a dispute claiming that
discrimination based on contractual status alone. 96 In an English case,
Department of Work and Pensions v Webley, 97 a fixed term employee
claimed to have been dismissed instead of permanent employees. After
having worked for the employer for 51 consecutive weeks, the employer
did not renew her contract. The employee argued that the employer had.,
treated her less favourably than it did its indefinitely employed
92 Notably no explanation is provided for what is meant by 'same or similar' in respect of

the particular provision. South Africa, unlike the United States, does not have a standard
occupational classification system that can be used to assist in rating of different employment
categories and classifications. For more information in this regard see United States
Department of Labor Bureau of Labor Statistics 'Standard Occupational Classification',
available at http://www.bls.gov/soc/revisingthe standardoccupational classification_
2018.pdf, accessed on 8 October 2015. How it will be determined whether work is of equal
value for purposes of the EEA is also unclear from what is set out in the EEA Regulations,
2014.
" Section 198C(6) of the LRA Amendment Act.
" Harksen v Lane NO & others 1998 (1) SA 300 (CC) para 48; Leonard Dingler Employee
RepresentativeCouncil vLeonard Dingler(Pty) Ltd & others (1998) 19 ILJ 285 (LC) 299; TGWU
& anotherv Bayete Security Holdings (1999) 4 BLLR 401 (LC) 402D-G.
95 Ntai& others v South African Breweries Ltd [200112 BLLR 186 (LC).
96 However, there have been at least two cases that can assist atypical employees with these
claims. See for instance Harmse v City of Cape Town [20031 6 BLLR 557 (LC) in which the
Labour Court considered lack of experience an arbitrary ground for discrimination. More
relevant to the discussion, in McPherson v University of KwaZulu-Natal & another [2008] 2
BLLR 170 (LC) the Labour Court found that fixed term employees were excluded from
consideration for promotion and this was held to have amounted to arbitrary discrimination.
97 [20041 EWCA Civ 1745.
employees, because the employer had chosen to terminate her employ-

ment instead of theirs. The discrimination, she claimed, was based on
her employment status. Initially the fixed term employee was successful.
But, on Appeal Ward LJ, Jacob LJ and Wall Q unanimously concluded
that the fact that a fixed term contract is terminated when its term has
run out, would not in itself be proof of less favourable treatment when
compared with standard employees. 98
Differentiation between employees for other reasons would also not
necessarily qualify as being unfair. For instance, the Constitution9 9 and
the EEA 1° ° both allow for remedial or restitutionary differentiation in
order to favour groups that were previously disadvantaged. 10
Contractual status is still not a ground listed in the EEA. Therefore, it
has to be proven that the discrimination was for an arbitrary reason that
is not excusable in the light of the Constitution.' 0 2 If the intention was to
provide better protection for atypical employees, it would have made
more sense to list contractual status in section 6(1) of the EEA. Although
the onus of proof would remain on the employee to show that
discrimination had occurred, it would be much easier to make out a
prima facie case, after which the employer would have to justify the
differentiation. As the employer would be in a better position than
the employee to produce evidence regarding performance appraisals
and information pertaining to the comparator, it would make sense.
(f) Atypical employment and standard employment differs

significantly
Before an atypical employee would be able to claim that he or she is
being treated less favourably than a 'comparable full-time employee', he
or she would have to prove that the work that he or she is performing is
10 3
the same, similar or at least of equal value to that of a comparator.
Unfortunately in doing so, the temporary nature of the work cannot be
ignored. This is acknowledged by the legislature where it stated that
98 Paragraphs 36-37.
99 Section 9.
00.Section 6(1)(a).
"' Grogan, Employment Rights (Juta 2014) 205-206; National Coalition for Gay and
Lesbian Equality v Minister ofJustice 1999 (1) SA 6 (CC) paras 60-61; Minister of Finance &
others v Van Heerden 2004 (6) SA 121 (CC) 121C-D.
02 Harksen v Lane NO & others (above) para 52; Stojce v University of KwaZulu-Natal
(2006) 27 ILJ 2696 (LC) 2696-2697.

0'3Nombalcuse v Department of Transport and Public Works: Western Cape Provincial
Government (2013) 34 ILJ 671 (LC) para 33.
'(3) Taking into account [my accentuation] the working hours of a

part-time employee, irrespective of when the part-time employee was
employed, an employer must-
(a) treat a part-time employee on the whole not less favourably than a
comparable full-time employee doing the same or similar work,
unless there is a justifiable reason for different treatment; and
(b) provide a part-time employee with access to training and skills
development on the whole not less favourable than the access
0
applicable to a comparable full-time employee.'1 4
Determining whether jobs are the same, substantially the same, or of
equal value by means of an objective assessment is not easy when
atypical employees are involved. Unfortunately, despite the guidance
and criteria that is provided to assist employers and employees in the
respective Codes' 05 and by the Employment Equity regulations, it
appears that the criteria expose a number of defences that employers,
could use to counter the claims of atypical employees in particular:,
There are differences in the terms and conditions of employment, and in
most cases at least one of the justifications for differentiation that are
mentioned in the EEA, the Employment Equity regulations 10 6 and the
Code of Good Practice on Equal Pay/Remuneration for Work of Equal
Value, 107 would serve as an escape for the employer.
104 Section 198C(3) of the LRA Amendment Act.

105 Items 3.3-3.4 of the Code of Good Practice on the Integration of Employment Equity-
into Human Resource Policies and Practices determine that this mechanism applies to
employees who are covered by the EEA. Its purpose is to provide guidance to employers in
applying the equal treatment provisions in the EEA in as far as they are applicable. The
Minister of Labour published the Code of Good Practice on Equal Pay/Remuneration for
Work of Equal Value on 1 June 2015 in GG 38837. The purpose is to provide employers and
employees with practical guidance on how to apply the equal pay for equal work principles
and to eliminate unfair discrimination in terms of the EEA. In terms of item 2, the Code of
Good Practice must be read with the EEA, the Employment Equity Regulations, 2014 and the
Code of Good Practice on the Integration of Employment Equity into Human Resource
Policies and Practices.
.06 The Employment Equity Regulations, 2014 reiterates the exclusions as enumerated in
the main Act: Regulation 7 determines that it is not considered as unfair for employers to
differentiate between employees doing the same work or work of equal value, based on one or
more of the grounds listed. These grounds include seniority, length of service, qualifications,
ability, competence required for the performance of the job, the quality or quantity of work,
the scarcity of the particular skills that an employee has or any other differentiation that does
not amount to unfair discrimination and that is rational.
Io7 The Code of Good Practiceon Equal Pay/Remunerationfor Work of Equal Value, available
at http://www.gov.za/sites/www.gov.za/files/38837-gon448.pdf, accessed on 15 June 2016 in
item 7 states that, despite the existence of discrimination, it would not be unfair if one of
several factors renders the differentiation fair and rational. These grounds include seniority or
length of service; quantity or quality of work (subject to the employer's performance
evaluation system), and that the performance evaluation system is consistently applied; where
an individual is employed temporarily in a position for purposes of gaining experience or
First, an employer could claim that the value of the work that is being
performed by an atypical employee is not, objectively speaking, of equal
value to the work performed by a permanent employee. Due to the
temporary nature of the work, arguably, atypical employees do not have
the same degree of responsibility as their permanent colleagues. Lack of
experience could conceivably be another factor that may serve as an
obstacle to an atypical employee's claim: someone who has been
permanently appointed for 30 years to do a certain type of work would
logically have more experience than someone who is appointed on, say, a
12-month fixed term contract. Two other factors are mentioned in the
Code of Good Practice on Equal Pay/ Remuneration for Work of Equal
Value: the physical, mental and emotional effort required to perform the
work; and the working conditions such as the physical environment,
psychological conditions, time when and geographic location where the
work is performed. Although the weighting that is attached to each of
these four factors can be adjusted in terms of the Code of Good Practice
on Equal Pay, they should at least feature in every job evaluation.
Likewise, the new equal treatment provisions in the LRA for atypical
employees earning below the threshold 0 8 are not absolute prohibitions
against differential treatment of different categories of employees.
Certain exceptions are enumerated in the provision itself:
'For the purposes of sections 198A(5), 198B(8) and 198C(3) (a), a justifi-
able reason includes that the different treatment is a result of the
application of a system that takes into account-
(a) seniority, experience or length of service;
(b) merit;
(c) the quality or quantity of work performed; or
(d) any other criteria of a similar nature,
and such reason is not prohibited by section 6(1) of the Employment
Equity Act, 1998 (Act No. 55 of 1998)."0 9
In practice these exceptions to the equal treatment provisions for
atypical employees, limit the content of the rights created by them more
so than for permanent employees. Some of the exceptions may actually
training and as a result receives different pay/remuneration or enjoys different terms and
conditions of employment; the existence of a shortage of relevant skill in a particular job
classification; and a blanket ground of justification: Any other relevant factor that is not
unfairly discriminatory in terms of s 6(1) of the EEA.
'01 Section 198A(5) in respect of employees performing temporary employment services
for a client for longer than three months, s 198B(8)(a) that is applicable to fixed term
employees who have worked for an employer for a period exceeding three months on a
continuous basis, and s 198C in respect of part-time workers.
19 Section 198D(2) of the LRA Amendment Act.
constitute indirect discrimination. The fact that an employee is

appointed on a temporary basis, could in itself exclude the possibility of
having received the same training as an indefinitely appointed employee.
It is very likely that an employer can limit or exclude these workers'
exposure to key performance areas to the extent that so doing could
exclude any potential claim that the work performed was of equal value.
If the employer, for instance, instructs a fixed term employee to perform
certain tasks, while excluding him or her from participating in other
projects, it can become an easy defence for an employer against an equal
pay claim to raise lack of experience, the fact that less work is performed,
or a similar justification.
Considering the innate differences between permanent employment
and temporary employment, the exclusions may very well exclude the
possibility of a successful claim by an atypical employee in totality. But,
the work that is performed by the atypical employee may be of equal or>-
even higher value. Nevertheless, the employer would not under the
provision have to treat the two employees the same in as far as their pay
and benefits are concerned.
(g) An overlap exists between the equal treatment provisions

and the unfair labour practices provision
The right to equal treatment that is extended to atypical employees who
are covered by sections 198A, 198B and 198C respectively, includes the
right to equal benefits. Not providing equal benefits could also qualify as
an unfair labour practice.' 10 In Louw v Golden Arrow Bus Services (Ply)
Ltd' " the court also stated that the right to be treated equally in the sense
that one receives equal payment for work of equal value, although it is
not incorporated in the unfair labour practice provision, can be taken
into account when establishing whether an unfair labour practice had
been committed.
Due to the fact that an ex lege entitlement appears to have been created
by the inclusion of the right to equal treatment in the legislation, an
employer would no longer have discretion not to afford atypical
employees equal benefits.' 12 However, the enforcement of these 'rights'
1o Section 186(2)(a) of the LRA.

I" [2000] 3BLLR311 (LC).
12 See Apollo Tyres South Africa (Pty) Ltd v CCMA (DAI/11) [2013] ZALAC 3, para 50.
Ebrahim argues convincingly that discretionary provision of benefits by employers should
also be justiciable under s 186(2)(a) Ebrahim, 'The interpretation to be accorded to the term
"benefits" in section 186(2)(a) of the LRA: Continues: Apollo Tyres South Africa (Pty) Ltd v
CCMA (DA1/i1) [2013] ZALAC 3' (2014) 17(1) PER/PEL] 595, 605.
can prove very problematic in practice. An atypical employee (whether

appointed through a labour broker, on a fixed term basis, or as a
part-time employee) would be hard-pressed to claim an equal right to
access to the same on-the-job training as a standard employee. It would
undermine the rationale for making a short-term appointment for the
performance of a specific task if training is required before the employee
would be able to commence with the work. In addition, the right to
benefits under the LRA, in terms of legal precedent does not include the
possibility of claiming 'new benefits', only existing benefits. 1 3 Also,
the employee would have to institute the action against the employer
while he or she is still employed. This would probably not happen if the
employee has plans of staying on longer after the termination of his or
her temporary employment.
The courts are not inclined to afford employees more benefits than
they had agreed upon initially with their employers. The legitimate or
reasonable expectation concept" 4 is an English legal principle that has
been adopted into South African law."1 5 It has been described as being
the most flexible means of addressing the unfair labour practice
jurisdiction with its many contingencies." 6 This may indeed be very
beneficial in achieving fairness, as presiding officers are granted a wide
discretion, and the remedy may be moulded to suit very different factual
circumstances that may present themselves in the labour arena. But, this
wide discretion also leads to legal uncertainty. Despite the acceptance by
English courts that the reasonable expectation concept also includes the
possibility of extending beyond enforceable legal rights to ensure
fairness,' 17South African courts have derailed on various occasions, to
find that substantive benefits are not attainable under the reasonable
expectation remedy." 8 The fact that the reasonable expectation concept
113 Apollo Tyres South Africa (Pty) Ltd (above) para 50; Ebrahim (above) 612. See also
SARS vNtshintshi & others (2014) 35 ILJ 255 (LC) in which Apollo was followed to confirm
that discretionary allowances would also qualify as 'benefits' for purposes of s 186(2) of the
LRA.
"4 These two concepts have been used interchangeably. Council of Civil Service Unions &
others vMinister of Civil Service [ 1984] 3 All ER 935, 944A-E.
11 Administrator,Transvaal & others v Traub & others 1989 (4) SA 731 (A) 756G.
116 Froneman Jin Foster v Stewart Scott Inc (1997) 18 ILJ 367 (LAC) 373.
117Olivier, 'Legal constraints on the termination of fixed term employment contracts: An
enquiry into recent developments' (1996) 17 ILJ at 1027-1028.
"18In Iscor PensionFund v MurphyNO & another (2002) 23 ILJ 481 (T)it was held (at 492)
by Van der Merwe J that the doctrine of reasonable expectation only serves to protect an
individual's existing rights and that it cannot be applied in order to grant him or her future or
substantive benefits. See also Mokoena & others v Administrator,Transvaal 1988 (4) SA 912
(W) 918D-E. This means of application has syphoned down to the CCMA. See for instance
Hadebe v Woolworths (Pty)Ltd (1999) 20 ILJ 2459 (CCMA) 2459J; Bayat andDurbanInstitute
that had previously been abortively transposed into South African

labour law has apparently been reiterated in section 186(1)(b) leaves
fixed term employees uncomfortable, with only a hope to be retained
indefinitely, possibly without benefits that they had not been receiving
before. If section 186(l)(b)(ii) is interpreted literally so that a fixed term
employee who succeeds is 'retained' on the same or similar terms as in
the original contract - without the benefits attached to a permanent
appointment - the remedy would be nugatory. The appropriate
remedy for an unfair dismissal under sections 193 and 194 of the LRA
would be reappointment and not reinstatement, or payment of an
amount of compensation.
It would consequently be almost impossible for this type of atypical
employee, particularly if he or she was appointed before the new
legislation came into operation, to claim a right to receive the same
benefits as his or her indefinitely appointed colleagues.
Whether or not a fixed term employee can claim to have expected:
renewal of his or her employment contract and claim the benefits that he
or she should have received simultaneously is questionable. The two
claims may prove mutually exclusive in some respects. For instance, the
expectation of a fixed term employee who did not receive any benefits
for many years, but who nevertheless continued working, to have his or
her employment continue indefinitely now with the benefits attached,
would probably not be viewed as being a reasonable expectation.' 9
The apparent overlap between the unfair labour practice provision in
section 186(2) of the LRA, which provides that employees have the right
to fair labour practices, and the equal treatment provisions in section
198, could result in uncertainty in as far as how a claim referred by an
atypical employee should be framed. In addition, the different equal
treatment provisions as contained in section 198 of the LRA Amend-
ment Act and in section 6 of the EEA can cause confusion.
VI PRACTICAL OBSTACLES EXIST IN PROVING AN

ENTITLEMENT TO EQUAL TREATMENT
Section 198 of the LRA does not contain provisions relating to how the
information that would be required by an atypical employee must be
accessed. The relevant sections of the Promotion of Access to Informa-
of Technology (2006) 27 ILJ 188 (CCMA) paras 32-33; Van Biljon v Bloemfontein Transitional
Local Council (1999) 20 ILJ 2481 (CCMA) 2482.
19 Geldenhuys, (2013) 241.
(2016) 28 SA MERC Q
tion Act 120 would have to be used. This would necessitate an additional
court process that could be avoided if the employer was required to
prove that the differentiation is justified. In England, the National
Minimum Wage Act of 1998 provides for a special process for accessing
of records that are required by an employee to prove a discrepancy in the
amount which he or she has been paid by the employer. The employer
must in terms of this legislation produce the requested records within a
period of 14 days from the date that the request is received. Failure to do
so is made actionable. 121 This seems preferable to the system that is
necessitated by the new amendments in South Africa.
VII NO REMEDY PROVISION IS ATTACHED TO THE

EQUAL TREATMENT PROVISION
Even if an employee succeeds in proving that a differentiation in
payment exists between employees performing the same or similar work
or work of equal value, and that this differential treatment was the result
of unfair discrimination, it does not guarantee that he or she will receive
any kind of meaningful recourse. It is conceivable that in order to
narrow the gap between the payment received by employees for doing
work of equal value could mean decreasing the amount that the
higher-earning employee is being paid instead of paying the lower paid
employee more. A proper investigation into market-related pay would
have to be undertaken by an employee or by his or her legal representa-
tive before instituting the action, before this would be discovered.
VIII AMBIGUITY AND INTERPRETATIONAL VARIATION

CAUSES UNCERTAINTY
Previously employees employed by labour brokers, or who perform
temporary employment services, found enforcement of their rights very
difficult as it is not always clear who the employer is in the tripartite
set-up.1 22 The LRA Amendment Act introduced specific provisions to
address exactly this. But, the proper interpretation to be afforded
to different provisions contained in the amended section 198 of the LRA
has already been the subject of litigation.
120Act 2 of 2000.
'21 Sections 10 and 11 of the Minimum Wage Act of 1998. See also Painter & Holmes, Cases
and Materialson Employment Law 8 ed (Oxford University Press 2010) 130.
212Zolwayo v Sparrow Task Force Engineering (Pty) Ltd & another [2006] 6 BALR 599
(MEIBC); Dyokhwe v de Kock NO & others (2012) 33 ILJ 2401 para 44; Dyalvani and City of
Cape Town [20131 JOL 30173 (SALGBC).
How to interpret section 198A(3)(b) of the LRA has been in conten-

tion in a number of decisions, and has also been 'hotly debated' by
practitioners and human resources managers. 123 In Refilwe Esau Mphir-
ime and Value Logistics & BDM Staffing (Pty) Ltd 24 Mr Mphirime
worked for BDM Staffing (Pty) Ltd, a Temporary Employment Service
(TES), on a one-year fixed term contract. However, his employment was
terminated on a week's notice after he had worked only ten months. At
that time, Mr Mphirime had been assigned to the client, Value Logistics,
for a period exceeding three months.
The arbitrator determined that the purpose of introducing the
deeming provision in section 198A of the LRA was to counter the abuses
that were previously rife in the tripartite relationship. 25 In interpreting
and implying the provision, the arbitrator continued, accounting for
26
this aim as well as the context of the section in the legislation is crucial.
In other words, a holistic approach should be followed in interpreting'
the deeming provision. Section 198 of the LRA applies to all employers
and employees. For as far as it is possible, words in the legislation should
be given their ordinary grammatical meaning. In brief, the conclusions
that were reached by the arbitrator regarding the construct to be
afforded to the deeming provision were as follows:
If, and for long as they do, employees perform work that qualifies as
genuinely temporary work, the TES as employer remains responsible for
compliance with all the LRA's duties and obligations. In instances where
the contested contravention in question relates to one of the instances
mentioned specifically in section 198(4) the TES and the client can be
held jointly and severally liable.127 As soon as the work performed by the
assigned employee is not of a temporary nature and the worker has been
working for the client for a period exceeding three months, the client is
deemed the employer of the worker, and not the TES for purposes of the
LRA. 128 As, in this case, Mr Mphirime had been working for Value
Logistics for longer than three months and the work that he had been
doing was not the deeming provision in section 198(3)(b)(i) had
been triggered. In other words, the arbitrator ruled, the client was
Scheepers, 'Interpretation "deeming provision" Labour Relations Act -

'23 SA' 3/51,
available at http://www.linkedin.com/pulse/interpretation-deeming-provision-labour-relations-
act-scheepers, accessed on 22 February 2016.
124 [2015] 8 BALR 788 (NBCRFLI).
125 Refilwe Esau Mphirime and Value Logistics & BDM Staffing (Pty) Ltd (above) paras 23,
24. See also Grogan, 'Deemed employer' Employment Law Vol 31 Part 4 (August 2015).
'26 See also Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism &
others 2004 (4) SA 490 (CC) para 89.
127Para 29.
I28 Para 29.
responsible to comply with the obligations and duties in the LRA. 129
Consequently, the matter was referred back for arbitration in which
Value Logistics is required to prove that Mr Mphirime's dismissal was
fair in terms of the LRA.
In Assign Services (Pty) Ltd and Krost Shelving & Racking (Pty) Ltd&
another130 the crisp issue also hinged upon the proper construct to be
given to the deeming provision as contained in section 198A(3) (b) of the
LRA Amendment Act. 131 What had to be decided was whether this
provision provided for a 'dual employment' position or a 'sole employ-
ment position' after the initial three months of performing a temporary
32
service. 1
The commissioner conceded that there are two possible ways to
construe the section. It could be interpreted to mean that both the
temporary employment service and the client would be jointly liable
after three months (the 'dual employment' position), or that in the
circumstances envisaged in the provision, the client would be consid-
ered as the employer ('sole employment' position). In support of the
dual employment argument: If the labour broker or agency is held
jointly and severally liable together with the client to whom the
employee had been assigned, the employee would not have the problem
in respect of determining who qualifies as the employer when seeking
recourse for an unfair labour practice that had been committed. Strong
authority exists that the dual approach offers better protection for the
33
workers, which is the aim of the legislation.
However, the CCMA commissioner, after likening the dual employee
relationship to an adoption scenario, 34 felt that dealing with employees
in this way would result in too many uncertainties regarding who is
actually responsible for what. The conclusion was reached that section
198A(3)(b) makes the client, Krost Shelving & Racking (Pty) Ltd, the
sole employer of the workers who earned below the threshold amount,
and who had been working for the company for longer than three
35
months.
29 Paras 51-52.
130 Case No ECEL 1652-15 (26 June 2015), available at http://www.ccma.org.za/, accessed
on 27 August 2015.
I3 Para 3.1.
132 Paras 3.2, 3.3.
"' Para 4.5; Bosch, 'Section 198A(3)(b)(i) of the LRA: The argument in favour of dual
employment' (2013) 34 IndustrialLaw Journalat 1631; Grogan, 'The new dispensation: Part 1:
The amendments to the LRA' (2014) 30 (3) Employment Law at 4.
'3' Para 5.13.
, Para 6.
The Labour Court was also afforded the opportunity to consider how
the deeming provision contained in section 198A should be construed
after Assign Services (Pty) Ltd referred the commissioner's award on 136
review. The pivotal issue in Assign Services (Pty) Ltd v CCMA & others
Was whether, once the deeming provision becomes operational, the TES
would still be in a relationship with the worker, and if so, what the nature
of the relationship would be.' 37 Brassey AJ felt uncomfortable to use the
terms 'sole employment' and 'dual employment' in the context of
interpreting section 198A. In his opinion, classifying the relationships
created in terms of the triangular employment set-up in terms of such
abstract terms, could lead to further confusion. 38 The judge agreed that
section 198 of the LRA had been supplemented by the amendments in
order to improve the protection that is available to workers employed by
labour brokers. 139 In addition, he noted that section 198A only serves to
make the client the employer for purposes of the statutory rights as
conveyed by the LRA. Triggering the deeming provision has no bearing
on the contractual relationship that exists between the worker and the
140
TES.
This being the case, he saw no reason why the TES should not remain
an employer in terms of the LRA once the client is, in terms of the
deeming provision, given what he describes as 'a parallel set of such
rights and obligations'.141 Brassey AJ mentions two examples of
instances where the 'parallel relationship' he proposes would apply. If a
dismissal of the worker employed by the TES occurs after the client is
deemed the employer, both the TES and the client would have to ensure
that the requirements for a substantively and procedurally fair termina-
tion in terms of the LRA are complied with. Also, when performing a
headcount of employees for purposes of ascertaining whether a trade
union in a workplace or area is representative, the worker will, after the
deeming provision is triggered, have to be counted twice: by the client
and by the TES as both will be employers. 42 Having found that the
CCMA commissioner had erred in law when it declared Krost the sole
employer, 43 the award was set aside without substituting the commis-
136 [2015] 11 BLLR 1160 (LC).

'3 Para 1.
'3 Paras 3, 4 and 26.
139 Para 9.
40 Para 11.
141Para 12.
142 Para 13.
143Para 22.
sioner's award with an order, as sought, that the workers were 'employed
dually'. 144
Although the Labour Court seems to have set the scene by overruling
the two previous arbitration awards, Brassey AJ in his judgment predicts
that this will not be the final word on how section 198A must be
interpreted. In his view, 'the consequences of the broad-brush way
in which the new provisions have been drafted ' 4 5 will still result in
'considerable litigation in future. ' 146 The Assign Services case still does
not clarify how the relationship between the worker, the client and the
47
TES will operate. 1
IX THE 'RIGHT TO APPLY FOR PERMANENT VACANCIES'

IS TOOTHLESS
Employers have to grant fixed term employees equal opportunity to
apply for vacancies in the workplace.1 48 Part-time employees also have
to be granted the same opportunity to apply for vacancies in the
workplace as full-time employees. 149
Section 22 of the Constitution has since its introduction in 1996
granted every South African citizen the right to participate freely in the
economy by choosing which trade, occupation or profession they would
like to pursue. Although this right can only guarantee an opportunity
and not actual delivery, the content undoubtedly includes the right to
apply freely for positions that are advertised. 50 The Employment Equity
Act's unfair discrimination protection is made applicable to applicants
for positions as well.' 5' This supports the argument that the right to
freely apply for a position and to be treated equitably in doing so, in fact
already existed before section 198 of the Labour Relations Amendment
Act was introduced.
Despite the fact that the labour legislation now provides atypical
employees with a 'right' to be able to apply for vacancies in the
workplace, the same as permanent employees can, no preference is
created in as far as appointment is concerned. The fact that the post that
141 Para 26.

'45Para 13.
146 Paras 16-18.
147 National Security Commercial and General Workers Union on behalf of members and
BrilliantImagePersonnel& others [2016] 5 BALR 509 (CCMA) para 37.

148 Section 198B(9) of the LRA Amendment Act.
119Section 198C(5) of the LRA Amendment Act.

"5oSection 22 of the Constitution. See also De Waal & Currie, The Bill of Rights Handbook
6 ed (Juta 2013) 464-467.
... Section 9 of the EEA.
a temporary or part-time employee had been filling is advertised as a

permanent post does not mean that he or she has a legal right to be
appointed to it. 152 He or she would still have to apply for the position like
any other candidate. The inclusion of these 'empty promises' in the
legislation creates more confusion than it does extend the right -
particularly for atypical employees who are eager to secure permanent
employment. It is also conceivable that a legitimate reasonable expecta-
tion claim that a fixed term employee could raise would be lawfully
thwarted by the fact that the employer has not advertised the position
before the employee's fixed term contract expired.
X DEEMED PERMANENT EMPLOYMENT EXCLUDES

CERTAIN REMEDIES
A fixed term contract, or successive fixed term appointments, may not
be concluded for a period exceeding three months, unless the employer
can prove that the work that the employee is appointed to perform is of a
temporary nature, or that some other justification exists for conclusion
of a contract on a fixed term basis instead of indefinitely. 13 If a fixed
term contract is concluded for a period longer than three months, and it
appears that the nature of the work or some other justification does not
require a temporary appointment instead of a permanent one, the fixed
term contract will be deemed as one for an indefinite period instead of
for a fixed term.1 5 4 This would place the fixed term employee outside
of the scope of application of section 198 of the LRA and also
conceivably exclude him or her from the application of section
186(1)(b) of the LRA. When a CCMA commissioner, after having
assessed the circumstances, and having reached the conclusion that the
employment relationship was indefinite and not temporary, would need
to make a final declaration to this effect, after which an unfair dismissal
or equal treatment claim would have to be converted into the appropri-
55
ate remedy that is applicable to standard employees.1
This brings another issue into question: It is clear for purposes of
section 6 of the EEA, which is applicable to standard employees and to
those atypical employees earning above the threshold amount who do
not qualify for the equal treatment protection under section 198 of the
"52
SAMWU obo Govender & DurbanMetro Council [ 1999] 6 BALR 762 (IMSSA) 767.
...Section 198B(3) of the LRA Amendment Act.
, Section 198B(5) of the LRA Amendment Act.
, As s 198 only applies to atypical employees, this would mean that the measures provided
for in s 186(1)(a) of the LRA (in case of dismissal) or s 6 of the EEA (if the dispute concerns
equal treatment) would have to be applied.
LRA, that discrimination must be proven. The same cannot be said in as

far as section 198 of the LRA's equal treatment provision is concerned.
In other words, depending on whether someone earns above or below
the threshold, his or her right to access to justice may become more, or
less, limited.
The deeming provisions can also create potential technical obstacles
for employees and presiding officers alike. A new type of dismissal has
been introduced in terms of section 198 of the LRA particularly to
protect workers employed by labour brokers. If a TES or client termi-
nates the employee's assignment with the client, whether at the instance
of the TES or the client, in order to avoid the application of the 'deemed
employment' provision 56 or for reasons related to the exercise of a right
157
that the employee has under the LRA, it qualifies as a dismissal.
Recently, in National Security Commercial and General Workers Union
on behalf of members and Brilliant Image Personnel & others 58 atypical
employees who had been employed by a temporary employment service
and whose services had been terminated alleged that they were dismissed
to avoid the operation of section 198A(3)(b) of LRA. 159 Notably, the
matter was referred in terms of section 198A(4) instead of using
160
the mechanism for unfair retrenchment in section 189 of the LRA.
From the facts that the employees presented, the commissioner was not
convinced that to avoid the operation of the deeming provision, 6 1 or
the operation of the rights conveyed by the LRA had been the reason
for the termination of their employment as the date of termination was
after the date upon which the deeming provision would have become
operational by operation of law. 162 Therefore, the commissioner found
that no dismissal had been proven. Failure to traverse this jurisdictional
aspect excluded the need to further scrutinise the fairness of the conduct
in terminating the workers' services. This is a striking finding in the light
of the fact that the commissioner agreed with the TES that the reason for
the termination was operational in nature, and that no proper retrench-
63
ment process had been followed by either the TES or the client.'
Although this case does not serve as precedent as it was only a CCMA
award, it serves to illustrate that the introduction of section 198A(4) as a
156 Section 198(3)(b) of the LRA as discussed under VIII.

Section 198A(4) of the LRA.
8 [2016] 5 BALR 509 (CCMA).
159 Also see the discussion under VIII.
'6oParas 9-10.
6' Para 38.
162 Para 40.
163 Paras 13.4, 42 and 46.
new type of dismissal does not come without its own obstacles: Proving
that the employer attempted to avoid being subject to the deeming
provision, remains a very slippery slope for atypical employees to tackle.
The importance of noting the jurisdictional aspects that must be proven
under the various remedies that are now available to atypical employees
64
before referring a dispute is also emphasised. 1
XI ONLY CERTAIN ATYPICAL EMPLOYEES ARE ELIGIBLE

TO USE THE CCMA'S FREE DISPUTE RESOLUTION
PROCESSES
The CCMA or a bargaining council having jurisdiction can only deal
with disputes concerning employees who claim under the new provi-
65
sions if the claimant earns below the stipulated threshold amount. 1 If
an employee earns in excess of the threshold amount, the employee-t
would usually have to refer the dispute to the Labour Court.
It is also possible for someone under section 6 of the EEA to refer a
dispute to the CCMA if the applicant earns less than the earnings
threshold for arbitration. 166 In addition, the CCMA may arbitrate the
dispute in terms of the EEA, if the parties consent thereto. 67 Employers
are often willing to spend excessive amounts in legal fees in order to
oppose employees' claims. 168 Perhaps these expenses are seen by the
employer as being money well spent if it has the effect of discouraging
other employees from bringing similar claims. Consequently, it is
doubtful that the employer would consent to the CCMA's jurisdiction.
XII CONTRACTING OUT OF THE PROVISIONS IS

FROWNED UPON, BUT NOT IMPOSSIBLE
Employers are not allowed to contract out of the provisions of labour
legislation, or to devise measures to avoid the application of the
164 Para 46.

165 Section 198D of the LRA Amendment Act.
66 Section 10(6)(b)(ii).
167 Section 10(6)(c).
168See for instance Gubevu Security Group Pty Ltd and Ruggiero NO & others (2012) 33 ILJ
1171 (LC) paras 27-29. The court remarked that the employer chose to take a matter on
review despite the fact that this meant that legal costs were incurred that well exceeded the
original compensation award that the arbitrator had made against the employer.
legislation to them.1 69 In Nape v INTCS CorporateSolutions (Ply) Ltd 170

it was held that a client and the temporary employment service could not
regulate its relationship in a manner that enables either the client or the
temporary employment service to treat the employee in a manner that
would be contrary to the requirements of fairness contained in the LRA.
The Labour Court held that the provisions of the contract deprived the
employee of the statutory protection, which was found to be against
public policy and unlawful. It specifically held that it would be contrary
to the public policy to include a clause in an employment contract that
has the potential to negate the unfair dismissal protection as contained
171
in the LRA.
An obvious way, besides appointing atypical employees permanently
or dismissing them, to avoid the application of section 198, is to pay
employees slightly more than the threshold amount.
Section 198 does not provide coverage within the first three months in
which the employee works for the employer. 172 Fixed term employees
who have worked for the employer for three months or longer, unless a
justifiable reason exists for an employer to treat them less favourably,
must be treated as favourably as their permanent colleagues. 173 In the
same vein, unless a justifiable reason exists for the client to differentiate
in treatment between the employee performing the temporary service
and another employee working for him or her who performs the same or
similar work, the employee must be treated on the whole not less
favourably than that other employee. A 'temporary service' is defined as
the situation where a worker works for a client for a period that does not
exceed three months, to stand in for someone else during a period of
temporary absence, or if the work is recognised as being of a temporary
nature in a collective agreement that was concluded in a bargaining
council, or in terms of a sectoral determination or according to a
Ministerial notice.174 Therefore, this right also becomes applicable after
three months. 175 This leaves employers with the option of concluding
short term contracts, for three months or shorter in which atypical
169Section 5 of the LRA; Mahlamu v CCMA & others [2011] 4 BLLR 381 (LC); Mafike and
Kwikot (Pty) Ltd (2005) 26 ILJ 2267 (BCA) 2271; D'Lima v Board of Management,Princess
MargaretHospitalof Children(1995) AILR 3-173.
170(2010) 31 ILJ 2120 (LC).
17' Above at para 70.
'72 Section 198A(2), 198B(2)(a) and 198C(2) of the LRA Amendment Act.
,' Section 198B(8) of the LRA Amendment Act.
employees, even those earning below the threshold amount, can still be
treated less favourably than permanently appointed employees.
Employers who want to terminate their fixed term employees'
employment without having to follow the normal processes can also
wait out the term of a fixed term appointment. This can be done by not
advertising the vacancy (the fixed term employee's position) until after
the employment relationship has terminated automatically. In the
absence of a vacancy, no reasonable expectation can exist to continue
working. Workers working for temporary employment services also face
more difficulties than permanently appointed employees when claiming
based on unfair dismissal. This is mainly as a result of the uncertainties
76
surrounding the proper interpretation of the deeming provisions. 1
To avoid being subject to certain of the provisions that expressly
requires continuous employment, 77 employers may cause interrup-
tions in employment. Whether they will succeed is questionable. There
is no specific legal provision or guideline in regulations in respect of,
establishing continuity of employment for purposes of the new amend-
ment. However, if similar standards as followed in England are applied,
workplace interruptions that can be viewed as customs and practices in
the particular workplace would not qualify as interruptions affecting
continuity of employment for purposes of these provisions. 78 The
BCEA contains a section that determines that an interruption for a
period not exceeding one year would not be considered as affecting the
continuity of employment in as far as establishing entitlement to
the rights contained therein is concerned.179 If this provision is applied,
in respect of the LRA's new sections it could exclude the possibility of
avoiding the legislation by causing interruptions.
XIII CLASS ACTIONS ARE IMPOSSIBLE IN MANY

INSTANCES
Although it is possible to join interested parties in labour disputes,' 80 all
of the new remedies provided for under section 198 of the LRA would
"6See the discussion under VIII.

17' The equal treatment provisions applicable to employees employed by temporary
employment services (s 198A(5)) and employed on fixed term contracts (s 198B(8)), and the
severance pay provision that applies to fixed term employees who have worked for an
employer for a period of more than 24 months continuously (s 198B(1) of the LRA
Amendment Act). Employers employing fixed term employees are also only required to
justify employment on a temporary basis after three months.
.78Section 212(3) (c) of the Employment Rights Act of 1996.
9 Section 84 of the BCEA.
ISo Rule 31 of the CCMA Rules on practices and procedures prescribes the process for an
application for joinder.
(2016) 28 SA MERC Q
require proving individual cases based on the particular facts of each

instance. Obviously, this would cause capacity strains on unions who
represent their members in legal proceedings. The ineptness of the
legislative remedies is resonated by the prevalence of ongoing protest
action concerning the appeals of contract employees, particularly those
in outsourcing arrangements.'18 The apparent incorrect interpretation
otP82 and lack of confidence in the newly introduced mechanisms to
address the plights of these workers 83 is evident from the fact that they
prefer to embark on strikes that are often unprotected.
XIV LACK OF LEGAL PRECEDENT

Last, but not least, the fact that so few matters have been referred under
the new provisions to date also means that there is not a developed body
of jurisprudence surrounding proper interpretation and application.
The CCMA has been specifically tasked in terms of the legislation, to deal
with matters of interpretation and application of the matters brought
under section 198A-C. 84 However, CCMA awards are not regarded as
precedent that must be followed by other commissioners in the CCMA.
This leaves it up to commissioners to interpret and apply the new
provisions. This may inevitably lead to very divergent views, which may
85
lead to a variety of conclusions.
XV CONCLUSION
Although one of the aims of the labour law reform was to promote
equality between indefinitely appointed employees and non-standard or
atypical employees, 86 certain inequities that existed before the amend-
ments were made to the LRA remain, and new anomalies have been
introduced.
'81See for instance SABC 'Outsourcing Must Fall committee to intensify protest action',
available at www.sabc.co.za/news/a/387981804b5aa3248e169e425ab4c1l9/Outsourcing-
Must-Fall-committee-to-intensify-protest-action-20161801, accessed on 2 April 2016.
'82 The new provisions seem to be misconstrued in the sense that affected employees
believe that after having worked for three months; they are either automatically permanently
employed, or entitled to indefinite appointment.
83 In Painter & Holmes, Cases and Materials on Employment Law 8 ed (Oxford University
Press 2010) the authors opine (at 51) that it is when legislative protection mechanisms are
perceived as weak that workers turn to other measures. Notably, the legislation has had the
effect of overruling the contents of contracts of employment.
'84Section 198D of the LRA.
815Scheepers, 'Interpretation "deeming provision" Labour Relations Act - SA' 5/51 -
8/51.
186 Discussed under II.
Certain groups of employees (including atypical employees falling

within those classifications) are excluded from the operation of the new
provisions. 8 7 Even where these intrinsic limitations do not apply and
the remedies are applicable to atypical employees, they may be ineffec-
tual.
Even though atypical employees appear to enjoy the same statutory
protections as permanent employees in theory, the circumstances in
which they work may make it very difficult to enforce their rights.
Despite the fact that all atypical employees - and not only those who
earn below a certain threshold amount - are in principle protected
against unfair dismissals, it is still more difficult for them to prove that
an unfair dismissal occurred than it is for indefinitely appointed
employees. The uncertainties relating to the correct interpretation of
section 186(1) (b) of the LRA have been resolved, or so it would seem, by
the amendment of this provision in order to expressly extend the scole
of its application to also cover fixed term employees who expect to be
kept on permanently. However, the wording of the new amendment
could still make it extremely difficult for a fixed term employee to
succeed with an unfair dismissal claim. The legal loops that an atypical
employee would have to jump through in order to succeed in a claim
under section 198 of the LRA are more than those that apply to
18 8
permanent employees.
The protection that is extended to employees working for labour
brokers, include 'deeming provisions' concerning who, between the
client and the labour broker, can be held accountable for different
contraventions of the law, which makes the enforcement of rights easier
for this type of atypical employee. Unfortunately, some of the new
provisions are already causing problems as a result of the fact that they
1 89
can be interpreted to mean more than one thing.
Although the legislature's intention is to provide more protection for
this vulnerable group of employees, the unintended, and unfortunate,
effects of the legislation includes diminishing of the already limited job
security that atypical employees enjoy.
's See the discussion under III.

88 This is discussed under IV.
"8 See the discussion under VII.

Inequality in Equality

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Bluebook 21st ed.

ALWD 6th ed.

APA 7th ed.

Chicago 7th ed.

McGill Guide 9th ed.

MLA 8th ed.

OSCOLA 4th ed.

The Labour Relations Amendment Act 6 of 2014 ('LRA Amendment

II EQUAL TREATMENT IS CONSTITUTIONALLY

Article 26 of The Covenant on Civil and Political Rights, available at http://

legislation, or a provision in it, has the effect of limiting the right to

III NO OVERARCHING LEGAL DEFINITION EXISTS FOR

IS Section 36 of the Constitution.

(a) Section 198 defines 'fixed term contract'

(b) Certain atypical employees are excluded from the new

There has been extensive development in the jurisprudence in as far as

independent contractor is still often confusing and contradictory. 36 The

(c) There may be overlaps between different categories of

IV A QUALIFICATION THRESHOLD IS SET

earning threshold applies would require the performance of a means

V SEPARATE PROVISIONS REMAIN OR ARE

remedies for unfair dismissals as those applicable to indefinite employ-

(a) Only fixed term employees require a 'fixed term contract'

4 CCMA '2014 Case law monitor' 114, available at http://www.ccma.org.za/

appointment and renewal/s to be effected in writing. 53 However, no

" Section 198B(6) of the LRA Amendment Act.

the employment duties would not in itself mean that an employment

(b) The section for the protection of fixed term employees

Case no C649/2012 (5 November 2013) para 18.4.

but the employer offered to retain the employee on less favourable

6 Section 186(1)(b) of the LRA as amended.

Otherwise, the clumsy wording of the section could potentially lead to

(c) Unfair dismissal protection applicable to fixed term

71 Section 198B(6) of the LRA Amendment Act.

(d) The new dismissal provision seems unnecessary and has

(e) Discrimination on the basis of contractual status in

(4) A difference in terms and conditions of employment between

83 See the discussion in Geldenhuys, An Evaluation of the Rights of Fixed-term Employees in

87 Section 6 of the EEA as amended.

92 Notably no explanation is provided for what is meant by 'same or similar' in respect of

employees, because the employer had chosen to terminate her employ-

(f) Atypical employment and standard employment differs

(2006) 27 ILJ 2696 (LC) 2696-2697.

'(3) Taking into account [my accentuation] the working hours of a

104 Section 198C(3) of the LRA Amendment Act.

constitute indirect discrimination. The fact that an employee is

(g) An overlap exists between the equal treatment provisions

1o Section 186(2)(a) of the LRA.

can prove very problematic in practice. An atypical employee (whether

that had previously been abortively transposed into South African

VI PRACTICAL OBSTACLES EXIST IN PROVING AN

VII NO REMEDY PROVISION IS ATTACHED TO THE

VIII AMBIGUITY AND INTERPRETATIONAL VARIATION

How to interpret section 198A(3)(b) of the LRA has been in conten-

Scheepers, 'Interpretation "deeming provision" Labour Relations Act -

136 [2015] 11 BLLR 1160 (LC).

IX THE 'RIGHT TO APPLY FOR PERMANENT VACANCIES'

141 Para 26.

BrilliantImagePersonnel& others [2016] 5 BALR 509 (CCMA) para 37.

119Section 198C(5) of the LRA Amendment Act.

a temporary or part-time employee had been filling is advertised as a