# Regulatory Compliance Category > Labour Relations and Legislation Forum >  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

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## HR Solutions

Neither

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## AndyD

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

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## 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

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## 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?

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## HR Solutions

In my opinion you have no grounds.

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## 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.

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## 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.

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## 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" ?

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## 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.

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## 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.

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## 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.

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## 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).

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## 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.

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## 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.

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## Greig Whitton

> 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.

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## Dave A

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.




> 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?




> "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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## HR Solutions

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


Totally correct.

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## Greig Whitton

> 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.




> 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.




> 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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## Dave A

> Originally Posted by Dave A
> 
> 
> 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.




> "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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## 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

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## 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

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## 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).

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## Dave A

> Originally Posted by 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).

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## 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.

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## 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!)

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Dave A (03-Jul-17)

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