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Ivan Israelstam

Misuse of legal technicalities endangers tightrope balance.

Don’t stumble over badly drafted employment contracts.


Labour law gives the employee the onus of proving that he/she was dismissed. Therefore, if the employee cannot prove the existence of an alleged dismissal his/her claim of unfair dismissal must fail.

 

However, in some cases the question as to whether the employer’s actions constitute dismissal is not easily answered. This is particularly so in a case where an employer claims that the employee’s employment was terminated by the operation of law. That is, the employer could claim that the employment was terminated because an existing law prohibited the continuation of the employment, thus imposing a termination that was out of the hands of the employer.

 

In the case of Bithrey vs the Department of Health, Gauteng (Lex Info, 7 October 2024. Case number JR1478/22, Labour Court) Bithrey was appointed as a registrar at the beginning of 2017 on the basis that she would do clinical work at one of the employer’s hospitals and would, for a period of 5 years, be enrolled at Pretoria University. Her contact contained no end date but the employer claimed that Bithrey, by operation of law (Health Professions Council regulations) had only been appointed for a 4-year period.

 

After 4 years the employer notified the employee that her post was coming to an end on 31 December 2021 on the basis that the Health Professions Act prohibited the continuation of employment of employees after 4 years unless an extension of employment had been approved.

 

The employee lodged an unfair dismissal dispute with the public health bargaining council. The arbitrator found that the post of registrar was temporal and to be occupied by a registrar in training. The arbitrator ruled that the employee had not proved that she had been dismissed because she had not been appointed permanently and because a registrar has to vacate the post if she has not passed her academic study course after 4 year; and Bithrey had not, by 31 December 2021 completed her 5-year course.

 

On review the Labour Court found that the employer’s claim that Bithrey’s employment had been terminated by operation of law was invalid and that the employer had created the problem by its failure to ensure that the employment contract was clearly worded.

 

The Court found the dismissal to have been procedurally and substantively unfair and ordered the employer to pay the employee eight months’ compensation.

 

This case highlights the need for employers to understand the importance of drafting clear and unambiguous employment contracts as well as the limitations of reliance on legal technicalities such as terminations on the basis of operation of law.

 

The innovative video series WALKING THE LABOUR LAW TIGHTROPE assists employers to provide their managers with very inexpensive training that allows the managers to achieve the necessary knowhow at times suitable to their very busy schedules. Its 48 chapters, averaging 10 minutes in length each, can easily be watched at junctures when the manager has time. This greatly informative yet very engaging and practical video series provides crucial and user-friendly learning through the use of a stimulating, animated case study that runs throughout the 48-chapter series. Each chapter contains clear and important advice needed by workplace management on the basics of labour law over a very wide range of topics.

 

A further advantage is that the manager can, for a full year, easily go back to any of the 48 videos for purposes of refresher training or in order to access information on how to deal with a current workplace issue. This solves the problem of managers forgetting what they have learned.

 

This video series helps management to walk the shaky labour law tightrope and to run the workplace productively without falling into the labour law abyss. 

 

To access our groundbreaking video series: WALKING THE NEW LABOUR LAW TIGHTROPE please go to www.labourlawvideos.co.za  or contact Ivan on ivan@labourlawadvice.co.za 


The opinions expressed in this article are the author’s own and do not necessarily reflect the view of Lexinfo CC.


Date Posted: 21 Oct 2024

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