In terms of the amendments the employee, in essence, gets extra protections in terms of the LRA (except genuine substitute employees, for example maternity cover).
The TES provider may remain after three months. The extra protections include the extended joint and several liability which may result in the referral of both the client and the TES to the CCMA by an aggrieved employee as well as equal treatment unless there is a differential factor (including seniority, length of service, merit, performance or any other non-discriminatory criteria. Similar protections have found their way into fixed term contract and part-time employees.)
In short temps (earning under the threshold) do not become permanent after 3 months.
- creates a deeming provision after 3 months;
- creates joint and several liability after 3 months;
- would have expressly stipulated (in plain and simple language) a worker becomes the permanent employee of the client of a TES after 3 months.
The relevant section in the Act is S198(4A) where it states:
If the client of a temporary employment service is jointly and severally liable in terms of section 198(4) or is deemed to be the employer of an employee in terms of section 198A(3)(b) —
(a) the employee may institute proceedings against either the temporary employment service or the client…
There is a clear intention for a relationship beyond three months but with justification.
REMEMBER : IT ONLY APPLIES TO EMPLOYEES EARNING LESS THAN THE EARNINGS THRESHOLD.