The changing public policy and automatic termination of fixed-term employment contracts in South Africa

Abstract

Automatic termination is an accepted means of terminating fixed-term employment relationships. The use of "automatic termination" clauses in employment contracts has become commonplace. Awareness of the potential for abuse of these contractual mechanisms is increasing. Recent case law on the issue indicates that the public policy, which serves as test for validity and/or enforceability of "automatic termination" clauses has changed. The impetus for the protection of "non-standard" or atypical employees is underscored by policy considerations that have been incorporated by the recent legislative amendments. These developments may very well place a heavier burden than before on employers who opt to rely on "automatic termination" clauses to sustain an argument in favour or their validity and/ or enforcement.

Keywords

• Automatic termination
• "automatic termination” clauses
• contracting out of statutory protection
• contractual waiver of rights
• "fixed-term contract”
• public policy
• public interest
• "non-standard” employees
• resolutive conditions
• temporary employment services
• termination by operation of law
• validity and enforceability of contractual device