Unjustified exclusion means unfair discrimination

I often receive enquiries from employees stating that they are employed on a fixed term contract or temporary basis, and that a vacancy has arisen within the organisation but they have been informed that they may not apply for the vacancy because they are not classed as permanent employees. I have always advised those employees to refer a dispute to the CCMA - whether or not they have done so I do not know. In Mcpherson v University of KwaZulu-Natal & another [2008] 2 BLLR 170 (LC), this very matter was addressed in the Labour Court as recently as 31 August 2007 - case number 045/05.

The applicant joined the University of Durban-Westville, on a five year fixed term contract. After serving a probationary period he was appointed director of the university's School of Physical Science. There was later a merger between the University of Durban-Westville, and the University of Natal. The post occupied by the applicant - director of the School of Physical Science - was then advertised with the requirement that only permanent members of the university staff at the level of senior lecturer or above could apply.

The applicant tried unsuccessfully to seek an order from the Labour Court interdicting the employer from continuing with the selection process. The applicant then resigned his post and took up a better paid post at another university. However, despite having resigned his employment, he still referred a dispute to the CCMA claiming that his previous employer's appointment policy was discriminatory, and that he sought compensation. The Labour Court noted that the applicant was the only member of the university staff who had protested against the restriction of applicants for certain posts to permanent members of staff.

The court noted further that the employer University had many employees on its staff who, for historical reasons, had been appointed on fixed term contracts and that they constituted a vulnerable group. The court noted that by excluding temporary or fixed term contract staff from consideration for certain senior positions, the employer had discriminated against them. There had been no evidence submitted by the respondent employer to show why certain posts should be reserved for permanent members of staff - in other words, there was no justification for it.

The court awarded the applicant six months remuneration as compensation for this unfair discrimination. It is significant to note that in this matter, the applicant had resigned, had taken up higher paid employment elsewhere, but was still awarded compensation of 6 months remuneration to be paid to him by his previous employer. On the face of it, it appears that to refuse applications for permanent positions from applicants who are employed on a fixed term contract or on a temporary basis, constitutes unfair discrimination on an arbitrary basis.

I certainly cannot think of any reason why an employee on a fixed term contract should be prohibited from applying for a permanent post with the same employer. Employers would do well to take note of the circumstances of the particular case under discussion - it is a very important decision for employers who presently prohibit fixed term contract employees from applying for a permanent post.

Employers should note also that "resignation" does not necessarily mean" goodbye.' The fact that an employee has terminated the employment contract does not automatically bring about the termination of his right to refer a successful dispute to be CCMA or Bargaining Council.

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