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JUDITH GRIESSEL

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Probation disguised as fixed-term contracts

Feb 27, 2020

 

There are still employers who try to avoid proper probation by using fixed term contracts. And coming up with clever legal arguments to try and circumvent statutory provisions. The Labour Court would have none of it.   

Introduction

We frequently get enquiries from employees who had been appointed ‘on probation’ for a few months, and then find themselves still working for the employer some two months after the probationary deadline, without any formal confirmation of their employment status, and lacking a ‘permanent’ contract.

In the recent case of National Union of Public Service and Allied Workers (NUPSAW) V Mfingwana and Others (C251/17) [2020] ZALCCT 4 (20 February 2020), the employer who found itself in a situation like this and came up with some creative ideas to try and circumvent the law, was in fact a Trade Union! The Labour Court made some interesting and noteworthy observations about their approach.

Facts

The Union employed Mr...

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