Disputes concerning claims of unequal treatment within non-standard employment relationships often arise under Sections 198A–C of the Labour Relations Act (LRA), with Section 198D providing the procedural framework for resolving disputes. This necessitates a better understanding of the types of non-standard employment relationships as regulated.

Temporary Employment Services (TES) – Section 198A of the LRA

In terms of Section 198A, the TES deeming provision is triggered when an employee earning below the Basic Conditions of Employment Act (BCEA) threshold has been assigned to the same client for more than three (3) months. At that point, the employee may be deemed to be employed by the client for purposes of the LRA, with joint and several liability between the TES and the client. Once deemed, the employee may not be treated less favourably than a comparable employee performing the same or similar work. For a comprehensive understanding of the ABCs of TES and the deeming provisions, click on the link.

Fixed-Term Contracts – Section 198B of the LRA

Section 198B requires that the reasons for fixed-term contracts be justified. Where this is not the case, or where the contract extends beyond three (3) months without a justifiable reason, the employment may be deemed indefinite. After twenty-four (24) months of continuous service, severance pay may be payable on termination if the statutory criteria are met. The intention is to prevent the misuse of rolling renewals to cover what are, in fact, ongoing operational requirements not of a limited nature. Our Sun, Sweat and Protection article provides a navigational guide through the different types of employees.

Part-Time Employment – Section 198C of the LRA

Under Section 198C, employees earning below the threshold who are employed on a part-time and/or casual basis must not be treated less favourably than comparable full-time employees. They must also be afforded equal access to training, skills development, and opportunities, unless a justifiable reason exists for not affording the same. To understand the intersections that overlap between casual or permanent employment relationships, click on the link.

General Regulatory Provisions – Section 198D of the LRA

While Sections 198A–C establish the substantive protections, Section 198D sets out the procedural mechanism for enforcing them. What Section 198D does not provide is the power to quantify or award monetary relief. Where compensation or other substantive remedies are sought, these must be pursued through the routes prescribed in Section 191 of the LRA, the BCEA, or contractual obligations.

The scope of Section 198D has, however, been the subject of debate. Before the matter of Bata SA (Pty) Ltd v SACTWU obo Members [2024] 8 BLLR 866 (LAC), the judgment in Nama Khoi Local Municipality v SALGBC [2019] 8 BLLR 830 (LC) was interpreted as allowing the CCMA, under Section 198D, to go further than mere declarations and to award compensation. Parties frequently relied on this reading to argue that the CCMA could declare status, pronounce on equal treatment, and in the same proceedings quantify back pay. This created uncertainty as to the true scope of Section 198D and raised the question of which forum was competent to grant monetary relief.

The Labour Appeal Court in the Bata SA case resolved this uncertainty. It held that Section 198D limits the CCMA to declaratory powers in relation to current employees. While the CCMA may determine whether employees are deemed under Sections 198A–C and whether they have been treated less favourably than comparators, it has no jurisdiction to award compensation or to calculate monetary adjustments arising from such findings. In the case of former employees, a tribunal may declare their status as at the date of termination, but monetary relief does not follow from Section 198D. Such relief must be sought under Section 191 of the LRA, the BCEA, or a contractual obligation. Employers must appreciate that a declaration under Section 198D may only be the first step, with further proceedings in other forums required to obtain remedies.

Proving Lawful Differentiation

Employers can manage risk by ensuring that any differentiation rests on verifiable, objective grounds. Comparator roles should be defined with precision, and “same or similar work” should be credibly established. Justifications such as seniority, experience, merit, performance, scarcity allowances, or shift premiums must be contemporaneously recorded and consistently applied. TES placements should be monitored against the three-month threshold, fixed-term contracts should state their purpose and duration clearly and avoid rolling renewals for ongoing needs, and part-time employees should be audited to confirm equal treatment in pay, benefits, and access to opportunities. By implementing clear, consistent, and well-documented employment practices, employers can reduce legal exposure and uphold fair treatment in the workplace.

Understanding the Regulatory Provisions

Section 198A regulates TES arrangements and the deeming consequences after three (3) months, requiring that deemed employees not be treated less favourably. Section 198B governs fixed-term contracts, demanding a genuine link to limited work, while Section 198C protects part-time employees by insisting on equal treatment unless objectively justified. Section 198D provides only the procedural framework for declaring status and testing treatment, with remedies to be pursued under Section 191 of the LRA, the BCEA, or contractual obligations.

Together, these provisions form a coherent system with substantive protections in Sections 198A–C, declaratory powers in Section 198D, and remedies in other forums. Therefore, equal work does not always equate to equal treatment, provided that there is a lawful justification for the difference in treatment. This framework ensures that fairness in employment is not solely about identical treatment but about ensuring that any distinctions are grounded in legitimate, justifiable reasons.

Tips:

  • Keep Clear, Documented Justifications for Differentiation

If you differentiate between employees (for example, in pay, benefits, or opportunities), ensure that the reasons are objectively verifiable and well-documented. Legitimate justifications include factors such as seniority, experience, merit, performance, or scarcity of skills. Keep written records of these reasons at the time decisions are made, not later.

  • Audit Non-Standard Employment Regularly

Monitor TES placements to ensure no worker earning below the BCEA threshold exceeds the three-month limit without reassessment. Review fixed-term contracts for clear purpose statements and avoid rolling renewals for ongoing work. Confirm that part-time and casual employees receive fair pay and access to training opportunities compared to full-timers.

Article by Takayedza Moyo

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)