When one considers section 41 of the Basic Conditions of Employment Act (“BCEA”), it is evident that “employees” are entitled to severance pay for each completed year of continuous services with that employer. The definition of the word “employee” in the BCEA is not subject to the nature of the contract of employment. In other words, even if a person is in a fixed-term contract he or she falls within the definition of the word “employee”. Therefore, when one considers the set of facts, the individual has been an “employee” from the inception of the fixed-term contract.
The remaining question is whether or not “there was continuous service with the same employer”. Some guidance is provided in this regard by section 84 of the BCEA which provides that the length of an employee’s previous employment with an employer must be taken into account if the break between the periods of employment is less than one year. In the given facts there is and/or was not even a break. Therefore, it is my view that the employee has been in continuous service with the same employer and his or her employment during the fixed-term contract must be taken into account for the purposes of calculating the severance pay which is due.
