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Thread: is this discrimination or unfairness

  1. #11
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    Point 3 refers

    An employer may employ an employee on a fixed term contract or successive fixed term contracts for longer than three months of employment only if—
    (a) the nature of the work for which the employee is employed is of a limited or definite duration; or
    (b) the employer can demonstrate any other justifiable reason for fixing the term of the contract.
    Our client does market research. They use temps for short periods of time and continuously renew from contract to contract.


    My "opinion" I was reffering to was that the company has no obligation to employ him (i.e. temp to perm), I was answering him regarding this, which was his initial question.

  2. #12
    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by Dave A View Post
    You have not in any way qualified your statement. As I indicate, section 198AB of the Labour Relations Act may be of consequence - your statement does not allow for the possibility.
    Section 198B applies to fixed term employment which I doubt would be relevant given OP's description. It sounds like OP was employed on a part time or temporary basis rather than on a fixed term basis. This is a crucial detail since the non-permanent employment regulations are not uniform. For example, temporary employees working for longer than three months may be deemed to be permanent employees (subject to other conditions) whereas the same provision does not apply to part time employees.

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Greig Whitton View Post
    Section 198B applies to fixed term employment which I doubt would be relevant given OP's description. It sounds like OP was employed on a part time or temporary basis rather than on a fixed term basis. This is a crucial detail...
    I agree it is a crucial detail, and I did ask the question in post 5.
    The OP has failed to answer the post, but upon closer examination of the OP it seems to suggest "temporary employment" is in play as minimum (the OP was employed to substitute for the absence of a permanent employee who had been deployed elsewhere on probation).

    From a statutory application point of view, I suggest this "temporary employment" is fixed term employment.
    (It seems you see a difference between temporary employment and fixed term employment. Please feel free to point out what I am missing).

    It may be worth pointing out that if it is (also) part time employment, then section 198C becomes relevant (too).

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by HR Solutions View Post
    Our client does market research. They use temps for short periods of time and continuously renew from contract to contract.
    Just a word of caution - The continuous renewal in particular may pose a legal risk worthy of closer examination.

    Make no mistake, the 2014 amendments significantly changed the employment services, temporary employment and part time employment game.

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    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by Dave A View Post
    The OP has failed to answer the post, but upon closer examination of the OP it seems to suggest "temporary employment" is in play as minimum (the OP was employed to substitute for the absence of a permanent employee who had been deployed elsewhere on probation).
    "Temporary employment" is only in play if OP was placed by a temporary employment service provider per the amended LRA's definition of "temporary employment". This may be the case, but nothing OP has posted suggests that it is so.

    Quote Originally Posted by Dave A View Post
    From a statutory application point of view, I suggest this "temporary employment" is fixed term employment.
    "Fixed term employment" is only in play if OP was employed for the duration of a specific period of time, for the completion of a specific project, or until the occurrence of a specific event per the amended LRA's definition of "fixed term employment". My interpretation of OP's post is that this was not the case: it sounds to me like he was employed on non-permanent basis to fill an admin position vacated by his predecessor after she took up a sales position. The only way this could be considered "fixed term employment" is if OP was employed:

    (1) For a specific duration;
    (2) To complete a specific admin project; and/or
    (3) Until the occurrence of a specific event (e.g. the return of his predecessor from her probationary sales position).

    Quote Originally Posted by Dave A View Post
    (It seems you see a difference between temporary employment and fixed term employment. Please feel free to point out what I am missing).
    The amended LRA differentiates between three categories of non-permanent employment: temporary, fixed term, and part time. The colloquial use of these terms is not synonymous with their legal definitions, which makes for a particularly confusing set of provisions. Just because an employer believes that he has hired a "temp" doesn't mean that the new worker is, legally speaking, a "temporary employee".

    Quote Originally Posted by Dave A View Post
    It may be worth pointing out that if it is (also) part time employment, then section 198C becomes relevant (too).
    I believe that OP was most likely employed on a part time basis which means that Section 198C would apply.

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    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by Dave A View Post
    Just a word of caution - The continuous renewal in particular may pose a legal risk worthy of closer examination.
    You are correct, but the amended LRA provides employers with a surprisingly broad mandate for justifying the extension or renewal of fixed term employment contracts.

    Founder of Growth Surge - Helping entrepreneurs create more wealth and enjoy more freedom.

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    Site Caretaker Dave A's Avatar
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    Amazing how we can read the same post and interpret something differently - at least initially. I claim as defence it is you that introduced the term "temporary basis" when you did not mean to include "temporary employment service" and the associated "temporary employment" into the fray.

    Quote Originally Posted by Greig Whitton View Post
    I believe that OP was most likely employed on a part time basis which means that Section 198C would apply
    Bearing in mind the alternate to "part time employment" is "full time employment" I'm not convinced, but on that basis ...

    What would be the process to terminate part time employment after four months?

    Quote Originally Posted by Greig Whitton View Post
    "Fixed term employment" is only in play if OP was employed for the duration of a specific period of time, for the completion of a specific project, or until the occurrence of a specific event per the amended LRA's definition of "fixed term employment". My interpretation of OP's post is that this was not the case: it sounds to me like he was employed on non-permanent basis to fill an admin position vacated by his predecessor after she took up a sales position.
    If it was not fixed term employment (with a defined end date or event), then surely it was already indefinite duration employment.

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    but the amended LRA provides employers with a surprisingly broad mandate for justifying the extension or renewal of fixed term employment contracts.
    Totally correct.

  9. #19
    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by Dave A View Post
    Bearing in mind the alternate to "part time employment" is "full time employment" I'm not convinced, but on that basis ...
    That's not quite true. The alternative to "part time employment" could be "fixed term employment", "temporary employment", or "permanent employment". Even in the case of OP, it's not 100% clear which category of employment applies.

    Quote Originally Posted by Dave A View Post
    What would be the process to terminate part time employment after four months?
    The duration of part time employment is irrelevant for termination purposes. The risk of deemed permanent employment after three months does not apply to part time employees.

    Quote Originally Posted by Dave A View Post
    If it was not fixed term employment (with a defined end date or event), then surely it was already indefinite duration employment.
    "Indefinite" is not synonymous with "permanent" (e.g. part time employment can be indefinite).

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    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by Greig Whitton View Post
    Quote Originally Posted by Dave A View Post
    Bearing in mind the alternate to "part time employment" is "full time employment" I'm not convinced, but on that basis ...
    That's not quite true. The alternative to "part time employment" could be "fixed term employment", "temporary employment", or "permanent employment". Even in the case of OP, it's not 100% clear which category of employment applies.
    Section 198C states as follows:

    (1) For the purpose of this section—
    (a) a part-time employee is an employee who is remunerated wholly or partly by reference to the time that the employee works and who works less hours than a comparable full-time employee

    The clause goes on to give clarity on the definition of full-time employment...

    There is no ambiguity here - the definition of part-time employment has nothing to do with whether the employment is fixed term or indefinite term.

    Quote Originally Posted by Greig Whitton View Post
    "Indefinite" is not synonymous with "permanent" (e.g. part time employment can be indefinite).
    For clarity - What is the difference between "Indefinite duration employment" and "permanent employment" per the LRA?

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