is this discrimination or unfairness

[Thobile Mkhize]

I have been employed in this company for 4 months now as a temp doin admin and cashier nd sales, d lady hu had been doin this was on probartion for 3 months on a sales position. Then Sales position was advertised andwe both applied. I got the rejection letter for sales position nd she got the job. My current position was never advertised and when i asked if it was still available i was told that a suitable candidate had been found which was very odd for me because because they were never any interviews for the position yet its been taken. What has also come to my attention is that the position has been taken by my very own HR Managers daughter and i was left without a job just like that. Please advice is this fair in any way or was i descriminated against. Please advise

[HR Solutions]

Neither

[AndyD]

I'd suggest you approach the CCMA. http://www.ccma.org.za/Contact

[Thobile Mkhize]

On what grounds AndyD? I mean first i need to know if i have a case or not before i waste my time nd enenrgy

[Dave A]

I have been employed in this company for 4 months now as a temp doin admin and cashier nd sales

To be clear, are we talking about part time employment on an irregular basis, or regular employment on a fixed term contract?

[HR Solutions]

In my opinion you have no grounds.

[Thobile Mkhize]

Thanx guys i guess i was just heartbroken because in the end i was jot considered for this position. I will let it go and who knows maybe when something else comes I will be the first option since i have experience. I just wanted to find out what choices do i have before i burn my bridges. many thanx to all for the advice.

[Dave A]

Be careful of opinions presented without a basis. As there was temporary employment in excess of 3 months, it is possible that section 198B of the Labour Relations Act might apply.

[HR Solutions]

Be careful of opinions presented without a basis. As there was temporary employment in excess of 3 months, it is possible that section 198A of the Labour Relations Act might apply.

Im battling to understand what you have said and mean. We have about 11 temps that work at companies on an ongoing basis as temps. Their positions are often filled with someone else for various reasons. (All according to the law and temp contracts etc ...) Therefore what do you mean "without basis" ?

[Dave A]

what do you mean "without basis" ?

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.

For clarity, you can read section 198B of the Labour Relations Act here.

[HR Solutions]

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.

[Greig Whitton]

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.

[Dave A]

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).

[Dave A]

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.

[Greig Whitton]

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.

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).

(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".

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.