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Thread: Fixed Term Contract expired however still working

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    Fixed Term Contract expired however still working

    Good day

    I would just like to enquire regarding a fixed term contract.
    The employee in question was on a fixed term contract for 6 months ending 31 October.
    We did inform him that we are planning to rol the contract over for another 4 months.
    However we have not given him anything in writing.
    I read somewhere that if you donít give the employee an new contract in writing by the time the old one expires and he works further, then he automatically becomes a permanent employee.
    Is this true?
    If it is then this employee is probably a permanent employee now?

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    Site Caretaker Dave A's Avatar
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    Let's put it this way - I would get the employee to sign their new fixed term contract as soon as possible. Without it, a change of status to permanent employee will probably be assumed.
    The trouble with opportunity is it normally comes dressed up as work.

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    thanks dave, however if the employee also knows of this (loophole) and does not want to sign the new contract now because he/she assumed the change of status to permanent, is the writing on the wall then?

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    Site Caretaker Dave A's Avatar
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    We're only on 6th November - paperwork near always comes a little after the decisions are made.
    The trouble with opportunity is it normally comes dressed up as work.

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    Hi Dave, sorry to be a nag, when would you say is the point of no return, our current HR person is on leave and only gets back around the 20th, he is normally the person that does these contracts, would the 20th be too late?

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    Site Caretaker Dave A's Avatar
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    Hard to say where the point of no return might be exactly, but I wouldn't play around trying to find out.

    At the very least I'd issue a letter offering to extend the enter a new employee's fixed term contract for the next 4 months on the same terms and conditions as the previous contract, subject to the employee's acceptance. If the employee doesn't accept, send him / her home until a contract is signed.
    Last edited by Dave A; 07-Nov-12 at 11:22 AM. Reason: correction
    The trouble with opportunity is it normally comes dressed up as work.

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    Platinum Member sterne.law@gmail.com's Avatar
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    Probably add in to the letter, "further to our discussion on ????? whereby it was agreed to enter into a NEW 4 month contract.

    You should check the original contract with regards to the terms regarding renewal and notice etc, etc
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    It is mainly about reasonable expectation. I would imagine the employee could reasonably expect his contract to be renewed on the same terms and conditions. It would most likely not be reasonable to expect enhanced terms and conditions.
    But then again, who knows?

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    good day, I am an employee in this situation. I have 2 small kids and a wife to support. I need advice. I hope it will not come to the company forcing my hand. however I can't just roll over and die when they wake up and decide to formalize a roll-over. I am very good at my job, however it looks like the company wants me to fix the mess they created and then wants to put a ignorant family member in the position, he will then most likely mess it up again. what is my chances if I have to take them to the ccma to force them to make me permanent. I am sure it will be difficult if it comes to this, however difficult and supporting my family is a lot better than accepting a new contract and then in a couple of months not be able to support my family

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    Site Caretaker Dave A's Avatar
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    Without a precedent being quoted, as you might have gathered we're not sure where the line might be exactly. But I suggest three months employment outside of a contract would certainly make for a fairly strong case.

    Quote Originally Posted by antonhelp View Post
    I have 2 small kids and a wife to support.
    I understand where you're coming from. But I'd like to tender the other side of this coin.

    I'm an employer.
    I have a wife and two kids.
    I have over twenty employees.
    Many of them have dependants too.
    And we're all relying on the business to provide....

    At the end of the day, as an employer I can't look at the number of dependants of each employee - I have to look at the extent to which they add value to the business and:
    1. employ the people that do add value
    2. get rid of the people who don't add value
    3. pay each employee fairly in reasonable proportion to their value add
    4. rely on them to apply their remuneration wisely to look after their dependants and other personal obligations.

    If you want job security (as much as such a thing really exists in the world today), make sure you're contributing to the success of the business that pays all the bills. If you do, any employer worth his/her salt will want to keep you on board for as long as they are able.
    The trouble with opportunity is it normally comes dressed up as work.

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