Bheki* is a security guard working for a private security company. As part of insourcing all security, this company was employed by the municipality on a 3-month, fixed-term contract. The three months came and went, and Bheki was hoping he would be permanently employed, but all that happened was they were given rosters to continue working for nearly another month. Later, they were given another fixed-term contract for 3 months, which was backdated to make up for the additional days they’d worked.
In addition, the salaries the security guards get paid is much less than what the municipality pays their permanent security staff. They get no overtime payment, not even for Sundays, no nightshift allowance and no public holiday overtime. They also don't get any benefits that permanent employees get, like medical aid, pension fund, housing subsidy, etc.
Is this legal? What legal recourse do Bheki and his fellow security guards have?
Scorpion Legal Protection’s advice
Scorpion’s tough labour lawyers analysed the case. Effective from January 1, 2015, fixed-term employment contracts with lower-earning employees who work for employers with 10 or more employees must be limited to a period of three months, except under certain prescribed circumstances. After the three-month period, the employee will be deemed to be a permanent employee and is protected against unfair dismissal – unless the nature of the work justifies keeping the employee on a fixed-term contract.
What Bheki’s employer is doing is illegal in terms of the Labour Relations Act and Bheki can refer this matter to the CCMA as a case of unfair labour practice.
With regard to the question of salaries, no employer is obliged to pay his employees the same amount as the next employer, unless this is regulated by law through bargaining councils and/or sectoral determinations (the Minister may make a sectoral determination establishing basic conditions of employment for employees in a sector and area. A sectoral determination must be made by notice in the Gazette). In the case of security guards, there is a minimum wage sectoral determination, and if the employer is paying Bheki and his colleagues below the determination, they can take the matter to the Department of Labour.
Employment benefits such as medical aid and housing are not a right, and they accrue solely at the employer’s discretion. The only way that an employee is entitled to benefits is either when they had the benefits previously and they were removed without a justified reason or if the said benefit is given to some employees and Bheki is excluded without justification. If Bheki is entitled to the said benefits, he can refer his matter to the CCMA for unfair labour practice.
Note: This is only basic advice and cannot be relied on solely. Names have been changed to protect identity.