FIXED-TERM, PART-TIME & TEMPORARY EMPLOYMENT: LEGAL LIMITS & RISKS

Written by Dane Frost

Employing staff on fixed-term, part-time or temporary arrangements may offer flexibility for salons and spas particularly, in an industry influenced by client demand, seasonality and staff availability. However, flexibility does not mean freedom from legal regulation.

In South Africa, these forms of employment are strictly regulated by the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA), the Employment Equity Act (EEA) and importantly for our sector the Main Collective Agreement of the National Bargaining Council for the Hairdressing, Cosmetology, Beauty and Skincare Industry (HCSBC).

Employers who misunderstand or misapply these provisions expose themselves to significant legal and financial risk. Let us unpack the key principles and limitations.

Fixed-Term Employment – Section 198B of the LRA

A fixed-term contract is not simply “a contract with an end date”. Legally, it is a contract that ends:

• On the occurrence of a specific event,

• On completion of a specific task or project, or

• On a fixed date (excluding normal or agreed retirement age).

The Three-Month Rule

Section 198B of the LRA limits the use of fixed-term contracts beyond three months.

An employer may only employ an employee on a fixed-term contract exceeding three (3) months if:

• The work is genuinely of a limited or definite duration; or

• There is another justifiable reason for fixing the term.

The Act provides examples of what may constitute justification, including:

• Replacing an employee who is temporarily absent,

• A temporary increase in work (not exceeding 12 months),

• Seasonal work,

• Project-based work,

• Externally funded positions,

• Employment of students or graduates for training purposes,

• Employment linked to a valid work permit,

• Employment after normal retirement age.

If there is no valid justification, the employee is deemed to be permanent.

This deeming provision is one of the most significant risks for employers who use “rolling” contracts without lawful justification.

Writing and Justification Requirements

The offer of fixed-term employment must:

• Be in writing;

• Clearly state the reason for fixing the term; and

• Reflect agreement between employer and employee.

Importantly, the employer carries the burden of proving that the fixed term was justified.

Equal Treatment

An employee employed on a fixed-term contract for longer than three months may not be treated less favourably than a comparable permanent employee performing the same or similar work, unless there is a justifiable reason (such as seniority, merit, or performance-based systems).

They must also be given equal access to:

• Training and development; and

• Opportunities to apply for vacancies.

Project-Based Contracts Exceeding 24 Months

Where an employee is employed exclusively on a specific project exceeding 24 months, the employer must, upon expiry, pay one week’s remuneration for every completed year of service.

This payment is not required if the employer offers permanent employment or secures alternative employment on similar terms commencing immediately after expiry.

Early Termination and Expiry

A fixed-term contract may not be terminated before its expiry date without:

• A fair reason (misconduct, incapacity, or operational requirements), and

• A fair procedure in line with the Code of Good Practice: Dismissal.

Unlawful early termination constitutes an unfair dismissal.

Upon lawful expiry, the contract ends automatically provided the fixed term was genuinely justified.

However, non-renewal may constitute a dismissal under section 186(1)(b) of the LRA if the employee had a reasonable expectation of renewal. Successive renewals without justification are particularly risky.

Important Limitation

A fixed-term contract may not be used as a substitute for probation. Probation is governed separately under the Code of Good Practice Dismissal.

Part-Time Employees – Section 198C of the LRA

A part-time employee is one who:

• Works fewer hours than a comparable full-time employee; and

• Works more than 24 hours per month.

Equal Treatment Principle

Part-time employees must, on the whole, be treated not less favourably than comparable full-time employees performing the same or similar work. Unless, there is a justifiable reason.

This includes:

• Access to training and skills development;

• Access to vacancies; and

• Fair remuneration practices.

A justifiable reason for differentiation may include:

• Seniority;

• Experience;

• Length of service;

• Merit;

• Quality or quantity of work.

However, differentiation may not amount to unfair discrimination as prohibited by section 6 of the Employment Equity Act.

The key risk here is indirect discrimination or systematic disadvantage of part-time employees without objective justification.

The HCSBC Main Collective Agreement: Industry-Specific Requirements

For employers in the Hairdressing, Cosmetology, Beauty, and Skincare Industry, compliance with national legislation alone is not sufficient. The Main Collective Agreement imposes additional enforceable obligations.

Definitions under the Agreement

• Temporary Employee: Employed for a limited period; or as a substitute for a temporarily absent employee (excluding maternity leave); or for a specific project or task.

• Part-time Employee: Employed for not less than one (1) day per week and not more than three (3) days per week.

• Casual Employee:

o Employed for less than 24 hours per month; or

o Appointed in the temporary absence of a female employee due to maternity leave (limited to 122 days).

These definitions must align with, and not contradict, the LRA.

Mandatory Notification to Council

One of the most critical compliance risks in the industry relates to administrative obligations.

Employers must:

• Notify the Council in writing within seven (7) days of employing a part-time, casual, or temporary employee;

• Notify the Council within seven (7) days of termination of such employment.

Failure to notify the Council results in the employee being regarded as permanent and entitled to all benefits in terms of the Main Collective Agreement.

This is a strict and often overlooked provision with significant financial implications.

Reporting Appointments and Resignations

Employers must notify the Council:

• On or before the seventh (7th) day of the month following appointment or resignation;

• By submitting Annexure B for new appointments, or

• By written notification (including full names, surname, ID number, and position) to amend@hcsbc.co.za for resignations.

Non-compliance may trigger enforcement processes.

Written Contracts Required

• Every employee must receive:

• A letter of appointment;

• A written contract outlining conditions of employment;

• Remuneration details;

• Commencement date; and

• In the case of temporary or maternity replacement employees, the termination date.

Failure to formalise these terms increases the risk of disputes regarding status and duration.

Key Legal Risks for Employers

Across fixed-term, part-time, and temporary employment, the primary risks include:

• Deemed permanent employment due to lack of justification;

• Unfair dismissal claims following non-renewal;

• Claims of unequal treatment;

• Financial liability for project-based contracts exceeding 24 months;

• Failure to follow fair procedure on early termination;

• Deemed permanency under the Main Collective Agreement due to failure to notify Council;

• Enforcement action by the Bargaining Council.

In practice, most disputes arise not from deliberate misconduct but from administrative oversight or misunderstanding of the legal thresholds.

Conclusion

Flexibility in staffing is legitimate and often necessary in our industry. However, flexibility must operate within the framework of both national labour legislation and the Main Collective Agreement.

The principle underlying South African labour law is clear: substance prevails over form. Simply labelling an employee as “temporary” or “part-time” does not determine their legal status.

Before implementing or renewing fixed-term, part-time, or temporary arrangements, employers should ask:

• Is there a genuine, objectively justifiable reason?

• Is the arrangement properly documented?

• Have we complied with Council notification requirements?

• Are we treating these employees fairly in comparison to permanent staff?

Proactive compliance is far less costly than retrospective litigation or enforcement.

If uncertainty exists, it is always advisable to obtain guidance from the Employers’ Organisation for Hairdressing, Cosmetology, and Beauty (EOHCB) before the contract is signed and not after a dispute has arisen.