Premature Termination of a Fixed term contract

Good day Gents

I would like some advise on this subject. Before I go to a labour attorney etc.

Quick overview.

I work on projects, Now i am stationed for this company on a project and the contract is signed for a fixed term of 12 months.

when i started in September 2013 after being employed for 2 weeks I received the specification of the Site and the clients minimal specifications for my legal appointed required a certain diploma.

Now i don't have this certification and told my employer that i don't meet the minimum specifications.

The employer recognized this and said there is no need to worry he will handle it.

I am in Health and Safety. So this is the first principle of wrong doing.

Now after a few incidents on site (other contractors) safety requirements have been pushed through the roof.

The client does not want to let me carry the appointment and it has come to a point that the employer has no option to meet the requirements and employ someone with the applicable certification.

This will result that my employer terminates my contract after 6 months.

In the contract the only clause states that the employee or employer can terminate contract with notice of 5 working days.

Now the question rises:

Do I have reasonable grounds to get a retrenchment package?

This was a incompetent mistake by the employer.... And atleast if i can get extra moola i can survive until i jump into a next project or get something permanent because this is always the headache working in construction.

Many thanks

Roozer wrote: Now i don't have this certification and told my employer that i don't meet the minimum specifications.

The employer recognized this and said there is no need to worry he will handle it.

Do you have written proof of this ?

Oupa i have an email that I was CC'd in from my project manager and the client. That in that email it states that they both recognize this. so i have the written proof.

Ok. If your nose is clean, then forget about the 'retrenchment" package and aim for a settlement package worth the full amount of the outstanding contract period. You have to handle it very professionally and don't be aggressive about it or it will eventually become a legal battle and end up no where costing you a fortune.

Spend a few bux and consult a labor consultant to make sure you don't loose out on the 'pay check"

Your mindset should be - They owe you R100, legal costs will be R30, so R70 is the goal. So yes, it is HIGHLY unlikely that they will settle for 100%, but aim for it !

And for the love of steroids "lol" DONT WAIT for the money, move on with your life and see the payout as a bonus.

Hahaha for the love of steroids... :lol: dont worry oupa already hitting the cvs.... the aim is not to screw the company or get a nice hokiday out of the deal I just always work on worst case. My job is risk haha.... just dobt want to fall behind payments if I struggle to get a new job... got my financial record up to where I cant fall into debt... but thanks for the advise is there anyone you can recommend consultant wise in gauteng area

Roozer wrote:
the clients minimal specifications for my legal appointed required a certain diploma.

First of all, this seems to me to be a contractual dispute rather than a labour law dispute. At no point were you a employee therefore you cannot claim any of the protections that an employee would get. Therefore "retrenchment claims" are off the table, but a breach of contract claim is what you should be focusing on

You gotta first consider whether you got a contract in the first place:

- When you say specification for "legal appointment"...what exactly does this mean? Was this a condition precedent (ie contract is not in full force and effect until this condition is met) or was it simply the job spec?

- If it is the latter, this does not form any any obligations on you unless its been specifically referenced in the contract. But even if it was referenced, the wording needs to be such that your failure to meet such requirements would result in the agreement being null and void.

- If it was a condition precedent, does the contract make provision for this CP being waived by written agreement/notice (it usually does)? If so, you gotta have written acknowledgement that you didn't meet the min specs but the other party was still satisfied. The e-mail which you were cc'd in, was it from the client or the project manager? It needs to be from the person you got the mail from (assume the client in this case).


Lets say for example that you don't have a contract because you didn't meet the requirements, you MIGHT have a case if you could argue that they created the expectation that the contract was valid (the expectation needs to pass a "reasonable man" test...would a reasonable man also come to the same expectation) (Not saying you not a reasonable man lol...its just a concept in law). Considering you worked 5+months without incident, sounds like you have a case

If the contract is valid, you gotta look at the termination and term/tenor provisions. What could cause an early termination of the contract? Does the period of the contract end 12 months from the effective date or is it one of those "period ending 12 months after effective date or..."?

Sorry for being so vague but its difficult to give advice without reading the contract or without knowing the full facts. Hopefully I've given you an idea as to what you should be thinking about..

Goodluck!

Was this by any chance linked to one of the renewable energy (solar PV) projects happening around the country?

Hi Bud. Labour Law is a big interest of mine, so I sent your question to a good friend of mine. Here is her response:

I don't have all the facts but will summarise:

He disclosed to his employer that he did not have the required qualifications- did this in an honest way and in good faith

Despite this his employer went ahead and should take the responsibility

Even though the contract says 5 days notice there must be a good process-procedurally fair one.

Suggest he discusses a settlement agreement with the employer based on points 1-2 above. This to either end his contract or put him in another position where his qualifications can be utilised.

P.S: Can see Oupa has some experience with this. :lol:

thanks for the replies guys. Okay let me go a bit more in detail about the technical aspects. My contract is signed with the company stating my hours, minimum job details, and specific project where I will perform the duties of the proposed job.

They received my cv and have all my certificates and credentials. They had everything in my interview 2 months before I received my contract. So no discrepancies from my side....

Now before anyone can work on the site the contractor has to comply with site specification. This is stipulated in the contract between the contractor and client. So what happens now is that I am not allowed to take my position as it does not meet the min spec.

So the contractor nneds to employ someone with the prescribed diploma needed... there is no other position I can fill as it is a specialised position...

The email was sent from the client stating I can not take the appointment as they need this diploma in environmental studies. " as they discussed "

And from my project manager stating that he thought it was no need for this....

So it proves it is incompetence from project management side.

Today I asked him straight what is the situation. Where his reply was, we will have to wait and see if we can get a concession and continue..

My educated opinion on this is that the client will not give the concession as there was a major safety incident (not solar power project but was in headline news) from negligence of safety officials.

But it leaves me in the position of unsure when the shit is going to strike.

There is no straight answer. The first things is that one has to look at your agreement. If it is what you say it is,then you are an employee. In SA, there is a deeming provision, thus you are deemed to be an employee (if the requirements are met, which i think you do).

although your agreement states that there cna be termination as provided above, there are still certain requirements in law that must be met. Its not just notice and tata.. but it really depends on the writing and full fact... believe me, nothing is always what it seems. As for retrenchment.. i dont think you qualify for retrenchment package or atleast the facts you provide does not show this.

But its difficult to give a clear answer as there is not sufficients evidence and docs to go on.

Contact the law society ..check the phone book ...they will arrange a half hour FREE consultation and one free letter if need be ...to state the obvious present the facts for them to peruse dont try to hide anything ...