Substantive Fairness and Temporary Employment Services


For a dismissal to be valid, it needs to be both procedurally and substantively fair. (To read more about what “substantive fairness” is read our article entitled What Is Considered To Be ‘Fair’ in a Disciplinary Hearing?) Temporary Employment Services (TES) have been in the news recently with regard to who their actual employer is: the TES or the TES client. The answer to this question is extremely relevant in dismissal cases. The case of Botes and others / LSC Masakhe (Pty) Ltd and another – (2017)26 NBCRFLI 8.28.1 also reported at [2017] 10 BALR 1037 (NBCRFLI) illustrates this.

Facts of the case

  • The applicants were posted at Imperial Express by LSC Masakhe (Pty) Ltd.
  • They were then transferred to another company in the Imperial Group to render the same services on the same terms and conditions. (They were drivers and general workers.)
  • After a period of two years, the work of the applicants was reduced and ultimately it ceased altogether. The reason for this diminution was that the company was investigating charges of alleged misconduct against them. As such, they did not want to use their services until the charges had been thoroughly investigated.
  • The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) brought up the fact that section 198A of the Labour Relations Act (LRA) indicates that TES employees who have been with a TES client for more than three months are in fact deemed to be employees of the TES client. (In fact, a dual employment relationship over the TES employees exists between the TES and the TES client.)
  • LSC Masakhe (Pty) Ltd argued that the TES employees could not be deemed to be their employees as said employees were employed on call-off contracts by IDC, according to which the TES employees were obligated to provide labour to the IDC as and when needed. It was not determined by a fixed time.
  • The Commissioner noted that under deeming provision of section 198A(3)(b) of the LRA, the TES employees could pursue claims against the TES as well as the TES client or both. Thus, the Commissioner declared that the TES employees were employees of IDC and were thus entitled to the wages that they would have received when the deeming provision took place.

This case highlights the fact that it is vital, if and when you decide to dismiss an employee or groups of employees, that you are very sure of your facts and that the procedure is both substantively and procedurally fair. If you would like assistance with such procedures in your company, please leave your name and number and one of our expert consultants will get back to you.

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