Navigating the Landscape of Automatic Termination of Employment Contracts: A Comparative Study of South Africa and the United Kingdom
DOI:
https://doi.org/10.25159/2522-3062/16163Keywords:
automatic termination, Public Services Act, public service employment, frustration of contracts, employment contract, South African labour law, UK employment lawAbstract
This paper examines the automatic termination of employment contracts, which occurs when a contract ends due to a predefined condition or event, without employer intervention. Focusing on South Africa and the United Kingdom (UK), it explores how such terminations arise through legislation and contractual clauses, particularly in relation to automatic dismissals. The study highlights the dilemma this presents for both public service employees and non-standard employees, including concerns around fairness, the principle of audi alteram partem and employers’ discretion to reappoint employees. It focuses on how the automatic termination of employment contract may be used to bypass unfair dismissals and labour practices. A comparative analysis reveals that while UK law refers to this as ‘frustration of contract’, South African law enforces it through the Public Services Act, 103 of 1999. This paper addresses the potential risks of erroneous termination or misinterpretation of contract terms by the employers, causing undue distress to employees and potential legal liabilities for employers. Recent case law on the issue indicates that public policy, which serves as the test for the validity and/or enforceability of automatic termination clauses, has changed. It concludes with recommendations to enhance the fairness and legal clarity of automatic termination practices in both jurisdictions.
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Cases
Bailey v BP Oil (Kent Refinery) Ltd [1980] EWCA Civ J0520-1.
Enforce Security Group v Fikile and Others (DA24/15) [2017] ZALCD 2.
Grootboom v National Prosecuting Authority and Another 2014 (1) BCLR 65 (CC)/ 2014 (2) SA 68 (CC)/2014 35 ILJ 121 (CC).
Khum MK Investments and Bie Joint Venture (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA52/2018) [2020] ZALAC 1.
Kingston v British Railways 1984 IRLR 146.
Maritime National Fish Ltd v Ocean Trawlers Ltd [1935] UKPC 20.
Maswanganyi v Minister of Defence and Military Veterans and Others (CCT170/19) [2020] ZACC 4; (2020) 41 ILJ 1287 (CC).
Motsamai v the Department of Public Safety, Security and Liaison (2001) 22 ILJ 487 (LC).
National Education Health and Allied Workers Union and Another v McGladdery NO and Others (D 137/2010) [2011] ZALCJHB 152 (1 November 2011).
National Education Health and Allied Workers Union (NEHAWU) v University of Cape Town and Others (CCT2/02) [2002] ZACC 27; 2003 (2) BCLR 154; 2003 (3) SA 1 (CC) (6 December 2002).
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Legislation
Constitution of the Republic of South Africa, 1996.
Defence Act 42 of 2002.
Employment Equity Act 55 of 1998.
Employment of Educators Act 76 of 1998. DOI: https://doi.org/10.1021/cen-v076n047.p058
Employment Rights Act of 1996.
Equality Act of 2010.
Labour Relations Act 66 of 1995.
Law Reform (Frustrated Contracts) Act 1943.
Military Discipline Supplementary Measures Act 16 of 1999.
Public Service Act 103 of 1994.
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© Published by the Department of Public, Constitutional and International Law, University of South Africa and Unisa Press.
