Employment contracts cannot evade statutory protections through fixed-term labels without genuine necessity.

Table of Content
1. employment classification based on genuine necessity. (Para 1 , 2 , 4 , 6)
2. burden of proof lies with employer to justify fixed-term status. (Para 7 , 8)

In a framework of statute-guaranteed security of employment however, where the termination of a workman's employment without just cause or excuse may be subject to an award of reinstatement by the Industrial court (see Section 20 of the Act , and the case of Dr. Dutt v. Assunta Hospital in Federal court Civil Appeal No. 276 of 1980 for the section's origins, interpretation and raison d'etre) it would be an obvious loophole if any employer could evade the statutory protection by making a series of contracts of finite duration with his workmen. In other words, employers could engage their workmen on a succession of fixedterm contracts of, say three months duration each and simply fail to re-engage particular workmen whom they wanted to get rid of without having to face a claim for reinstatement. This would, to quote from Dr. Dutt's case, make nonsense of the whole purpose and intent of, and stultify, the Act as well as offend well-known principles of interpretation of statutes.

In Han Chiang (supra) the court distinguished between genuine fixed-term contracts and ordinary contracts of employment. As to the former the court took cognisance of the relevance and need for the former type of contracts which must of necessity be for a definite duration and explained the main distinguishing features of such contracts as follows:

The court however, is aware that on the other hand there are genuine fixed term contracts, where both parties recognise there is no understanding that the

contract will be renewed on expiry. The court realises that such genuine fixed term contracts for temporary, one-off-jobs are an important part of the range of employment relationships. Some such jobs are found in seasonal work, work to fill gaps caused by temporary absence of permanent staff, training, and the performance of specific tasks, such as research projects funded from outside the employer's undertaking.

The question before the court is whether the claimant's employment was under a genuine fixed-term contract or not. The mere description of a contract as one for a fixed-term or a similar label attached to it is not determinative of the matter. The court must undertake an inquiry into the question whether an employer genuinely had a need for the services of an employee for a fixed duration and thereby employed the employee for the said term stipulated in the contract. The locus classicus for this proposition is again the case of Han Chiang (supra) wherein the court held as follows:

In deciding whether a contract is genuinely fixed-term or not, English tribunals were told:

The great thing is to make sure that the case is a genuine one ... On the one hand, employers who have a genuine need for a fixed-term employment which can be seen from the outset not to be ongoing, need to be protected. On the other hand, employees have to be protected against being deprived of their rights through ordinary employments being dressed up in the form of temporary fixed-term contracts. What we are saying in this judgment is that there is no magic about fixed terms contracts; that they are not ... excluded from the Act. ( Terry v. East Sussex Country Council , 1976, I.C.R. 536, per Philips J.).

Whether Genuine Fixed Term Contract

It is submitted on behalf of the claimant that the claimant's contract had been continuously and automatically renewed over a period of eight years (exhs. CL1-3, CL5 and CL6). The said contract was renewed automatically without the claimant having to apply for such renewal. This goes to show that an understanding existed between the claimant and the company that the contract will be renewed.

It is also submitted on behalf of the claimant that he was not employed for a particular project during his tenure, a fact which rebutted the existence of a genuine fixed-term contract. The c

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