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Non‐renewal of fixed‐term contracts Critical analysis of award

Non‐renewal of fixed‐term contracts Critical analysis of award Purpose – The purpose of this paper is to provide tests to apply and establish what factors are relevant in determining whether or not an employee had a reasonable expectation of renewal of a fixed‐term contract as envisaged in section 186(1)(b) of the 1995 LRA. Design/methodology/approach – The paper draws from case studies to examine whether these actionable conducts can be defined in a precise way. Findings – The common law scenario, has been materially altered by the provisions of section 186(1)(b) of the 1995 LRA that the employers' non‐renewal of the contract or offer to renew the contract whilst the employee reasonably expected the employer to renew the contract therefore it constitutes a dismissal. Practical implications – The common law interpreted that where a fixed‐term contract expires, where an express term in the contract stipulates that there is no expectation to renew the contract in the mind of the employee concerned that the contract will be renewed again; the employer will have no contractual remedy available to him. This paper calls upon common law to use and pro‐actively manage labour law responsibilities and further refine the existing dismissal tools. Originality/value – This paper contributes the rethinking of labour rights is necessary because the social, economic and political environments in which they were first conceived have been fundamentally affected by modern globalization and the expansion of the network society. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png International Journal of Law and Management Emerald Publishing

Non‐renewal of fixed‐term contracts Critical analysis of award

C.M. van der Bank
International Journal of Law and Management , Volume 50 (4): 10 – Jul 11, 2008
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Publisher
Emerald Publishing
Copyright
Copyright © 2008 Emerald Group Publishing Limited. All rights reserved.
ISSN
1754-243X
DOI
10.1108/17542430810890341
Publisher site
See Article on Publisher Site

Abstract

Purpose – The purpose of this paper is to provide tests to apply and establish what factors are relevant in determining whether or not an employee had a reasonable expectation of renewal of a fixed‐term contract as envisaged in section 186(1)(b) of the 1995 LRA. Design/methodology/approach – The paper draws from case studies to examine whether these actionable conducts can be defined in a precise way. Findings – The common law scenario, has been materially altered by the provisions of section 186(1)(b) of the 1995 LRA that the employers' non‐renewal of the contract or offer to renew the contract whilst the employee reasonably expected the employer to renew the contract therefore it constitutes a dismissal. Practical implications – The common law interpreted that where a fixed‐term contract expires, where an express term in the contract stipulates that there is no expectation to renew the contract in the mind of the employee concerned that the contract will be renewed again; the employer will have no contractual remedy available to him. This paper calls upon common law to use and pro‐actively manage labour law responsibilities and further refine the existing dismissal tools. Originality/value – This paper contributes the rethinking of labour rights is necessary because the social, economic and political environments in which they were first conceived have been fundamentally affected by modern globalization and the expansion of the network society.

Journal

International Journal of Law and Management – Emerald Publishing

Published: Jul 11, 2008

Keywords: Dismissal; Contracts of employment

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