Seniority, experience or length of service; Merit; The quality or quantity of work performed; or
Any other criteria of a similar nature, if such justification is not prohibited by section 6 of the Employment Equity Act 1998.
This is wide enough to find the reasons for such differentials.
The three-month and extra protection does not only apply to the temporary employment service providers though. Section 200B (3) places limitations and restricts the utilisation of fixed-term contract employees and the equal treatment provision is brought in for the fixedterm and part-time employees.
Section 200B (10) places a greater burden on employers, as employees employed on a fixed-term contract for longer than 24 months will need to be paid one week severance for every year service. No actual retrenchment process needs to be engaged on; however, the severance pay needs to be paid.
At the moment there are two interpretations of the provision in the marketplace:
That of the writers as well as a number of other legal minds, set out above; and
That all staff of a temporary employment service earning below the threshold become permanent after three months and are transferred to the client.
The courts will dictate what the correct interpretation is, but the questions in our minds are always: if the second interpretation was correct, would the extra protections not be superfluous? If there is a handover, why would the employee be able to refer both the temporary employ-