Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

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-


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