is this discrimination or unfairness

[Thobile Mkhize]

Hi guys, i was employed as a temp as stated in my contract but at first it was only for 3 months den later extended for another month all this was because the lady who was working as an admin was on probartion for sales position and was later employed fully as a sales person leaving admin post vacant. But wen i enquired about the admin position i was told they had found a suitable candidate without even having interviews never mind advertising the post. I am a bit confused about this part time employement nd fixed term contract and temporary employement please elaborate for me

[Dave A]

Hi guys, i was employed as a temp as stated in my contract but at first it was only for 3 months den later extended for another month all this was because the lady who was working as an admin was on probartion for sales position and was later employed fully as a sales person leaving admin post vacant.

A single extension done like that and given the underlying reason (which it seems you clearly understand), I expect you will not be able to claim the benefits of Section 198B (i.e. employment has not automatically converted to an indefinite duration contract). The intent of the section is to prevent abuse of fixed term employment contracts; there is nothing to suggest such abuse here.

This means when that 1 month extension ended, your employment contract entirely legitimately ended by expiration.

If there had been no formal extension for that extra month, then it would have been game on.

But wen i enquired about the admin position i was told they had found a suitable candidate without even having interviews never mind advertising the post.

This is a very different issue. Other than creating an expectation of consistency, the LRA is probably less helpful to you here than the company's employment policies might be.
Does the company have a policy on the process that must be followed when recruiting staff?
If yes, has that policy been contravened?

That said, there are two aspects that make me question the wisdom of taking the issue on in this case:

1. You've actually worked in the post. If you had smoked it, I doubt someone else would have got a look-in, and
2. If you're going up against the HR head, it's going to take significant understanding, skill and guts.

If you can get a shop steward to back you, it might be worth a shot. Otherwise, I suggest you would be better served to stay in the HR head's good books. Other opportunities might come up.

I am a bit confused about this part time employement nd fixed term contract and temporary employement please elaborate for me

Seems you might not be the only one. Hang around - I'm sure clarity will come in good time

[Greig Whitton]

Hi guys, i was employed as a temp as stated in my contract but at first it was only for 3 months den later extended for another month all this was because the lady who was working as an admin was on probartion for sales position and was later employed fully as a sales person leaving admin post vacant.

Were you: (a) assigned to the admin position by a temporary employment service provider, or (b) hired directly by the company where you worked?

(If (a), then you were a temporary employee. If (b), then you were a part time employee, not a temporary employee)

Did your contract clearly state that you were hired for a specific period of time (e.g. three months), for a specific project, and/or until a specific event occurred?

(If yes, then you were a fixed term employee)

Did you work: (a) the same number of hours as full time employees, or (b) less hours than full time employees?

(If (b), then you were a part time employee)

The purpose of these questions is to determine the category of employment that you fell into since that, in turn, will determine your legal rights.

A single extension done like that and given the underlying reason (which it seems you clearly understand), I expect you will not be able to claim the benefits of Section 198B (i.e. employment has not automatically converted to an indefinite duration contract). The intent of the section is to prevent abuse of fixed term employment contracts; there is nothing to suggest such abuse here.

This means when that 1 month extension ended, your employment contract entirely legitimately ended by expiration.

Agreed, assuming Thobile was either a fixed term or part time employee. If, however, he was actually a temporary employee (i.e. placed by a temporary employment service provider), then there is a possibility of deemed permanent employment.

But wen i enquired about the admin position i was told they had found a suitable candidate without even having interviews never mind advertising the post.

This is a very different issue. Other than creating an expectation of consistency, the LRA is probably less helpful to you here than the company's employment policies might be.
Does the company have a policy on the process that must be followed when recruiting staff?
If yes, has that policy been contravened?

Agreed, clarifying the company's employment policy is crucial, although even this could be complicated by Thobile's category of employment. For example, if he was a temporary employee, then the company's recruitment policy would be irrelevant since he would be an employee of the temporary employment recruitment agency rather than the agency's client ... unless the deemed permanent employment provisions apply, in which case he would be an employee of the client and the client's recruitment policy would be relevant.

In addition to this, the timing of Thobile's employment termination as well the commencement of recruitment for the position that he worked in is also crucial. If his employment was terminated prior to recruitment commencing, then the company's recruitment policy may be relevant since he would have been an employee at the time (unless, of course, he was temporarily employed since he would not be considered an employee of the company where he worked). On the other hand, if recruitment only commenced after his employment had been terminated, then he was not an employee at the time and the company's recruitment policy would almost certainly have no relevance.

That said, there are two aspects that make me question the wisdom of taking the issue on in this case:

1. You've actually worked in the post. If you had smoked it, I doubt someone else would have got a look-in, and
2. If you're going up against the HR head, it's going to take significant understanding, skill and guts.

If you can get a shop steward to back you, it might be worth a shot. Otherwise, I suggest you would be better served to stay in the HR head's good books. Other opportunities might come up.

Agreed. It's also worth asking yourself: what do you stand to gain from going to the CCMA? A favourable judgement would mean: (a) reinstatement, and/or (b) compensation.

(a) isn't going to be a whole lot of fun. How welcome do you expect to be at a company that was forced to take you back?
(b) isn't going to amount to very much since you only worked for a few months.

I'm not one to discourage people from exercising their legal rights, but I don't think you have a rock solid case and I don't think the potential gains justify the time, effort, and potential cost. If I were you, I would put this behind me and look for opportunities elsewhere.

I am a bit confused about this part time employement nd fixed term contract and temporary employement please elaborate for me

You're not the only one. The new non-permanent employment regulations were very badly drafted. I know of many so-called experts promising HR solutions who don't understand them. Here's the simplest explanation I can offer:

The amended Labour Relations Act defines three categories of non-permanent employment: temporary, part time, and fixed term. The LRA's definition of these categories is not the same as their everyday meanings. This is a big part of the confusion, because what you understand to be a "temporary" or "part time" position may not be the same as how the LRA legally defines those terms.

As if this wasn't confusing enough, the rules that the LRA introduces for these different categories are not exactly the same. Some rules are shared by more than one category; other rules are specific to a particular category.

And on top of all of this, the rules do not apply to all employers and all employees because there are various exemptions (e.g. employers might be exempt depending on how many people they employ, and employees may be exempt depending on how much they earn). Furthermore, like the rules themselves, these exemptions aren't exactly the same for all of the different categories (i.e. some exemptions apply to more than one category; others are specific to a particular category).

[Dave A]

A single extension done like that and given the underlying reason (which it seems you clearly understand), I expect you will not be able to claim the benefits of Section 198B (i.e. employment has not automatically converted to an indefinite duration contract). The intent of the section is to prevent abuse of fixed term employment contracts; there is nothing to suggest such abuse here.

This means when that 1 month extension ended, your employment contract entirely legitimately ended by expiration.

Agreed, assuming Thobile was either a fixed term or part time employee. If, however, he was actually a temporary employee (i.e. placed by a temporary employment service provider), then there is a possibility of deemed permanent employment.

Please expand on how you arrive at this conclusion.
(If you rely on S 198A.3.b, I'll point out it is subject to S 198B, the implications of which we have already agreed in this instance).

Perhaps if you could clear up the difference between "Indefinite duration employment" and "permanent employment" per the LRA, that would probably help.
(This is causing massive difficulty for me to follow your logic as I confess, I can't find a definitive reference to permanent employment anywhere in the LRA).

[Thobile Mkhize]

This is way too much for me lol. Anyway i am good guys and thank you so much for all your help. The way i see it is to just let things be. I know for a fact that i behaved well in the company during my stay and i did my work to the best of my ability hence the letter of recommendation i received from the manager. Basically me and my performance were not at fault in any shape or form it was just that i was not anybody relative that is why two of the managers kids got the job instead of me. Life goes on guys maybe something wil come along and they will think of me no1 knowS. But from the bottom of my heart thank you for all the advices.

[Greig Whitton]

Perhaps if you could clear up the difference between "Indefinite duration employment" and "permanent employment" per the LRA, that would probably help. (This is causing massive difficulty for me to follow your logic as I confess, I can't find a definitive reference to permanent employment anywhere in the LRA).

Section 8 of Schedule 8 references "permanent employment", but the reference is moot for our purposes (it has to do with probation).

My use of "indefinite" and "permanent" employment has caused unintended confusion. I introduced the distinction earlier this thread because I misunderstood your preceding post, so that was my bad (sorry!)