AFTER THE BELL: Make or break the gig economy — contracts, terminations, reasonable expectations and workplace miscommunication

A few years ago, I found myself very keen to pursue a particular opportunity but facing a problem many of us will have come across in this brave new gig economy.

At the time I was employed, full time and permanently, by an employer with a very good track record in treating the people who worked for it.

To do what I wanted to do I had to give that up, and move to a contract that, I was told, would be renewed every year.

When I first saw the contract I was not particularly impressed, it did not really cover all of my bases.

However, I was given some heart by the fact that included within it was a clause that said I would be given notice, a month before it ended, of whether it would be renewed for another year or not.

It was all Latin really, but the meaning was clear. I would know way in advance if trouble was coming, and I could live with that.

Intent

That issue of notice, of intent, is really what lubricates the way we work now.

As permanent employment seems to be almost on its way out, so the contract employee only feels safe if they know what might happen, and what is the most likely thing to happen.

A fascinating case has been wending its way through various forums and finally reached its conclusion in the Labour Appeal Court in August.

A senior employee at the Tshwane University of Technology, Dr Dhanasagran Naidoo, found that he was near the end of his five-year contract.

As the various hearings later found, he had been told that his conduct and performance had been exemplary. Another senior boss said it was a “no-brainer” that his contract would be renewed.

But it appears he and his immediate boss did not get on. When he asked his immediate boss if his contract would be renewed, they simply did not reply.

As that contract came to its end that person told him he could stay for another two months to conduct a handover, and pointed to a clause in the original contract saying that there could be no expectation that the five-year term would be renewed.

The key part of the final ruling is probably that the facts and circumstances, the way other employees were treated, and his conversations with senior members of management, among other things, “all serve to establish a subjective intention of renewable that is objectively reasonable”.

In other words, considering everything that was happening around him, and what he had been told, it was entirely reasonable that he expected his contract to be renewed, and thus it was unfair that it wasn’t.

This is the kind of case that makes me think long and hard about how people get on in an office together.

The major problem

It seems the major problem was that Naidoo and his immediate superior did not get on. If they did it would have been clear one way or another that his contract would be renewed, and because that person did not reply to him the door was opened to this “reasonable expectation”.

I wonder how the top management at TUT feels about that immediate superior now.

If they’d said explicitly that in fact the contract was not going to be renewed then none of this would have happened. The reason they didn’t is that clearly Naidoo had support from their superiors, and so they didn’t dare.

It’s a kind of microcosm of what can happen in the workplace anywhere.

You might well have been in a situation where the top bosses liked you and your work, but your immediate boss didn’t. You might have just lived with it, or waited it all out, or found a way to confront the issues and improve your relationship.

None of that is easy and it can be incredibly stressful. I would think though that good management at the top might well have been able to stop all of this from happening.

An assertive upper manager, aware of when contracts were ending, who valued the work of Naidoo or someone in his position, would have made sure the situation did not get out of hand in the way that it did.

But a really good manager would have already known that there was something wrong in the relationship between Naidoo and his boss and tried to do something about it.

I was lucky.

I saw my bosses pretty often. The relationships never broke down, my contracts were renewed and I enjoyed a happy and productive time in that place before leaving on very good terms.

But I was in the office. As we all work in the office less, the scope for disagreements and losing touch with each other will surely grow.

And I suspect cases like this might become a little more common. DM