The Law and Automatic Termination Clauses in South Africa
Automatic Termination Clauses in South African Law are not always clear cut.
If you apply for a job and do not disclose any criminal charges that have been brought against you, or in fact any criminal record that you may have, which the company uncovers during a routine background screening, can they automatically terminate your employment or in fact in a case where there is no criminal activity, can a company automatically terminate your employment?
In many employment contracts, an ‘automatic termination‘ clause is included. The validity of this clause is dependent on whether it prevents an employee from their rights as included in the Labour Relations Act. As an example, any limitation of an employee’s right to protection against unfair dismissal.
It is important to remember that:
- An employer may NOT include a contractual clause in an employment agreement which prevents an employee from relying on his/her right not to be unfairly dismissed or;
- Limits the right of the employee too challenge such dismissal
- It is NOT illegal for an employer to require fulfilment of a specific condition before employment begins or for employment to terminate automatically on fulfilment of a specific condition
- The merits of each case would need to be assessed to determine whether the automatic termination clause is valid or not
In the case where you have not disclosed pertinent information from the beginning, the company would argue that:
- The clause was valid as a positive security vetting in an inherent requirement of the job description
- The background screening returned a negative result in the form of pending criminal charges
- The condition of a positive background screening could not be met
- Your employment was fairly terminated as a result
This argument may be further supported by the fact that the background check was not in the control of your employer but conducted by another entity such as a personnel agency or the SAPS. The validity of this argument would, however, need to be judged taking into account your rights and other factors, including your right to:
- not to be unfairly dismissed
- to challenge your dismissal (whether this right was in anyway limited or waived by the clause)
- wording of the clause
- context of the job offer and employment agreement
- requirements of the job and the level of importance of a positive background screening
- reason for termination and the existence of any act by the company which was aimed at ending the employment
If you feel that an ‘automatic termination’ clause was unfairly applied, then you would need to consult a labour specialist, who would advise if you had any grounds to challenge the automatic termination of your employment.
This could be a very costly situation, so protect yourself today by taking out a Yambu Legal Policy to ensure that your rights are always protected. www.yambu.co.za