Solidarity obo Van Niekerk v Denel (Pty) Ltd (JS600/11) [2012] ZALCJHB 70; [2012] 10 BLLR 1030 (LC); (2013) 34 ILJ 435 (LC) (4 July 2012)

Solidarity obo Van Niekerk v Denel (Pty) Ltd (JS600/11) [2012] ZALCJHB 70; [2012] 10 BLLR 1030 (LC); (2013) 34 ILJ 435 (LC) (4 July 2012)

Clause 10.9 of the Conditions of Employment for Temporary Hourly Employees, incorporated into each of the applicant's fixed-term contracts, is clear and unambiguous. It provides that any temporary employee contracted for longer than 24 months must convert to standard conditions of employment, which are those applicable to permanent employees, including compulsory membership of the retirement and medical schemes and indefinite duration. The applicant, having been employed for more than 24 months, became entitled to appointment on standard conditions from 10 February 2011. The respondent was under a reciprocal contractual obligation to appoint her to the post of senior secretary or a...

Citation
[2012] ZALCJHB 70
Parties
Applicant: Solidarity obo A J Van Niekerk; Respondent: Denel (Pty) Ltd (Denel Dynamics)
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
4 July 2012
Case Number
JS600/11
Procedural Posture
Contractual Claim / Final Determination of Contractual Claim Before Possible Discrimination Trial
Outcome
The applicant's contractual claim succeeds. The respondent is ordered to appoint the applicant to the post of senior secretary (or comparable position) on standard conditions of employment with effect from 10 February 2011 and to pay the costs of the proceedings.
Judges
Van Niekerk
Legal Topics
Fixed Term Contracts, Conversion to Permanent Employment, Employment Equity Act, Contractual Obligations
Labour Law Commercial and Corporate Fixed Term Contracts Conversion to Permanent Employment Employment Equity Act Contractual Obligations

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Parties

Solidarity obo A J Van Niekerk

Applicant

Denel (Pty) Ltd (Denel Dynamics)

Respondent

Procedural Posture

Contractual Claim / Final Determination of Contractual Claim Before Possible Discrimination Trial

Legal Issues

  1. 1 Whether clause 10.9 of the Conditions of Employment for Temporary Hourly Employees entitled the applicant to permanent employment after 24 months of consecutive fixed-term contracts.
  2. 2 Whether the respondent was contractually obliged to appoint the applicant on standard conditions of employment after the qualifying period.
  3. 3 Whether the express terms of the fixed-term contracts were overridden by the incorporated conditions of employment.

Ratio Decidendi

Clause 10.9 of the Conditions of Employment for Temporary Hourly Employees, incorporated into each of the applicant's fixed-term contracts, is clear and unambiguous. It provides that any temporary employee contracted for longer than 24 months must convert to standard conditions of employment, which are those applicable to permanent employees, including compulsory membership of the retirement and medical schemes and indefinite duration. The applicant, having been employed for more than 24 months, became entitled to appointment on standard conditions from 10 February 2011. The respondent was under a reciprocal contractual obligation to appoint her to the post of senior secretary or a...

Court Disposition

The applicant's contractual claim succeeds. The respondent is ordered to appoint the applicant to the post of senior secretary (or comparable position) on standard conditions of employment with effect from 10 February 2011 and to pay the costs of the proceedings.

Orders

  • The respondent is ordered to abide by clause 10.9 of its Conditions of Employment for Temporary Hourly Employees and to appoint the employee to the post of senior secretary (or such comparable position as may be available) on its standard conditions of employment, with effect from 10 February 2011.
  • The respondent is to pay the costs of these proceedings.