Page 63 - Q&A Book.indd

It must be understood that an employer may not include a contractual
clause in an employment agreement which prevents an employee from
relying on his right not to be unfairly dismissed or limits the right of the
employee to challenge such dismissal. That said, 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. However, the merits of each case would have to
be assessed to determine whether the automatic termination clause is
valid or not.
In your case, the security company would argue that the clause was
valid as a positive security vetting is an inherent requirement to the job of
a security officer and that because 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 and that your
employment was fairly terminated as a result thereof. This may be further
supported by the fact that the vetting process was also probably not
in the control of your employer to be manipulated, but conducted by
another entity such as the SAPS. Whether this argument is valid, will
however have to be judged taking into account a number of factors, Labour
such as:
• Your constitutional right not to be unfairly dismissed;
• Your right to challenge your dismissal and whether this right
has in any way, been limited or waived by the clause;
• The wording of the specific clause;
• The context of the job offer and employment agreement;
• The inherent requirements of your position and the importance
of a positive background screening; and
• The reason for termination of employment and the existence
of any act by the security company which was aimed at
ending your employment.
Should you feel that this clause has been unfairly applied, it would be
prudent to consult with a labour specialist to look into the detail of your
employment contract as well as the specific circumstances of your case
to advise you on whether there are grounds to challenge the automatic
termination of your employment.

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