Employment Contract Expired but Still Working | What Are Your Rights?

Under South African law, when a fixed-term employment contract expires and the employee keeps working with the employer’s knowledge and without a new written agreement, the employee is generally deemed to have moved onto an indefinite contract for purposes of the Labour Relations Act 66 of 1995. From that point on the employer cannot simply end the relationship without following standard LRA procedure — a substantively fair reason, a procedurally fair process, and notice — and without paying any severance that may be due under section 41 of the Basic Conditions of Employment Act 75 of 1997. A worker who is dismissed without procedure can refer an unfair-dismissal dispute to the CCMA within 30 calendar days of the dismissal date.

How a Fixed-Term Contract Expires Under SA Law

A fixed-term contract is one that ends on a specified event, on the completion of a specified task, or on a fixed date — the statutory definition sits in section 186(1)(b) of the LRA. The contract does not require notice to end on its expiry date; it ends automatically once the trigger is reached.

If the employer wants the employee to leave on the expiry date, the employee must still be paid out all contractual entitlements on the way out:

• Pro-rata annual leave accrued but not taken (under section 40 of the BCEA)
• Any pro-rata bonus or incentive that the contract itself makes payable on termination
• Severance pay under section 41 of the BCEA, where the employee has been on the same or a related fixed-term contract for more than 24 months cumulatively and the employer has more than 50 workers

A worker who is dismissed before the expiry date — for example, for misconduct — is not protected by the “fixed-term contract” label. That is a dismissal, and the full LRA unfair-dismissal framework applies from the moment the employer acts to end the relationship.

What Happens When You Keep Working After the Expiry Date

This is the question at the heart of the matter, and the law’s answer is built on the common-law doctrine of tacit reconduction — silent continuation of the relationship on the same footing as before.

Tacit continuation and deemed indefinite status

If the employee carries on working after the contract’s end date and the employer accepts the work — by paying the salary, by giving instructions, by not telling the employee to stop — the contract is treated as having continued on the same terms. For dismissal-protection purposes the employee’s status moves from “fixed-term” to “indefinite” under section 186(1)(b) of the LRA. That change of status is what activates the full unfair-dismissal machinery: the employer can no longer point to a calendar date and call the relationship over.

Same terms carry over

Wages, working hours, job description, and benefits are presumed to continue on the same footing until they are varied by mutual agreement or by proper employer communication. If the employer wants to change a term after the expiry date — for example, by switching from a monthly to a weekly wage — that change needs the employee’s consent and, in many cases, written confirmation.

No retroactive “it ended last month”

Once the employer has accepted work post-expiry, the employer cannot later claim the relationship terminated on the expiry date and use that as a reason to withhold notice pay, severance, or accrued leave. The relationship is treated as having continued in fact, and the law treats it as continuing in law.

Your Rights If You’re Now Deemed Indefinite

Deemed indefinite status unlocks the full protective framework of the LRA and BCEA. The most important rights in practical terms are listed below.

Dismissal protection under the LRA

The employer can only dismiss for a fair reason linked to conduct, capacity, or operational requirements, and only after a fair process. In a misconduct case that means warnings and a disciplinary hearing; in a retrenchment case that means a proper consultation process and selection criteria. If either leg is missing, the dismissal is automatically unfair or procedurally unfair and the CCMA can award up to 12 months’ remuneration as compensation.

Notice of termination under the BCEA

Section 37 of the BCEA sets minimum notice at one week’s pay after six months’ service, two weeks after one year, four weeks after four years, and six weeks after ten years. The contract may prescribe longer notice, but never shorter — and a clause that tries to cut notice below the BCEA floor is unenforceable.

Completed service with the same employer	Minimum notice (BCEA section 37)
Less than 6 months	1 week
6 months – 1 year	2 weeks
1 year – 4 years	4 weeks
4 years – 10 years	4 weeks (statutory floor rises again at 10 years)
10 years or more	6 weeks

Severance pay under section 41 of the BCEA

On termination — whether the contract was fixed-term or indefinite — an employee who has been employed for more than 24 months on the same or related contracts and whose employer has more than 50 workers is entitled to one week’s severance pay per completed year of service. Fixed-term expiry counts as termination for this purpose. Both thresholds are strict; check the length of service and the headcount before assuming severance is due.

Accrued leave and pro-rata payments

Under section 40 of the BCEA, any unpaid annual leave accrued but not taken must be paid out on termination, regardless of whether termination was by expiry or by dismissal. Any pro-rata performance bonus that the contract makes payable on termination is also due.

What the Employer Cannot Do

Once the post-expiry work has been accepted, the employer’s hands are tied in several specific ways:

• Cannot refuse to pay for work performed. The employer cannot tell the employee that the contract “ended” weeks ago and refuse to pay for work done since the expiry date.
• Cannot treat silence as a waiver. If the employer accepts the work, the employment relationship continues; the employer cannot later argue that the employee should have stopped showing up.
• Cannot force a new fixed-term contract on a genuine-injustice basis. Insisting on a new fixed-term contract without legitimate justification, and particularly as a condition of continued employment, can amount to an unfair labour practice under section 186(2) of the LRA.
• Cannot dismiss for refusing to sign. An employee who refuses to sign a new fixed-term contract on less favourable terms cannot be dismissed for that refusal without engaging section 187(1)(c) of the LRA (automatically unfair dismissal) and the cap-free compensation regime that follows.

Practical Steps If This Is Happening to You

If you find yourself still working after your fixed-term contract has expired, the steps below will protect your position before any escalation to a formal dispute.

1. Document the continued work. Keep payslips, time records, and any messages from your manager showing that you are still being given work after the expiry date. Screenshots of work chats and email instructions dated after the expiry are particularly useful evidence.
2. Send a written query. Write to HR or your manager in plain terms: “My contract ended on [date]. Please confirm whether my employment continues and on what terms.” Keep a copy. This puts the employer on record without you sounding combative.
3. Do not sign away your status. Do not sign a new fixed-term contract on worse terms purely to keep working, without getting advice first. You may be giving up an indefinite-status position you already hold.
4. Check your leave and severance. Work out your BCEA leave pay-out and your section 41 severance entitlement (24-month threshold and 50-employee employer-size threshold) before any exit discussion. Numbers in writing help prevent disputes later.
5. If dismissed without procedure, refer quickly. Lodge an unfair-dismissal dispute with the CCMA within 30 calendar days of the dismissal. Condonation for late filing is possible but not automatic — the sooner the referral is filed, the stronger the position.

When a CCMA Referral Is the Right Move

The CCMA has exclusive jurisdiction over unfair-dismissal disputes under section 191 of the LRA; the Magistrates’ Court is not the correct forum. The Labour Court, sitting in Johannesburg and Cape Town, handles reviews and appeals of CCMA awards. Most worker-side disputes in this area fall into one of four scenarios, each with its own referral route.

Situation	CCMA route
Dismissed after the contract expired, with no procedure followed	Unfair-dismissal dispute under section 186 of the LRA — refer within 30 days
Refused a new fixed-term contract on worse terms and dismissed for refusing	Likely automatically unfair dismissal under section 187(1)(c) (refusal to accept a change to terms of employment) — refer within 30 days
Refused severance pay on fixed-term expiry	Conciliation at the CCMA first; if unresolved, arbitration can determine the section 41 BCEA entitlement
Dismissed before the expiry date, contrary to the fixed-term contract	Unfair dismissal — refer within 30 days

Frequently Asked Questions

My fixed-term contract expired two weeks ago and my employer hasn’t said anything. Am I still employed?

Probably yes — if you have been turning up and your employer has been accepting your work (by paying you, giving you tasks, or simply not telling you to stop), the relationship has continued by tacit reconduction on the same terms. You should put the question to your employer in writing and keep copies of your payslips and any work instructions covering the post-expiry period.

If I’m now on an indefinite contract, does the employer still have to follow procedure to end my employment?

Yes. Once the relationship is indefinite for LRA purposes, the employer needs a substantively fair reason (conduct, capacity, or operational requirements) and a procedurally fair process (warnings in misconduct cases, consultations in retrenchments). A dismissal without either is unfair and can be taken to the CCMA.

Am I entitled to severance pay when a fixed-term contract expires?

Under section 41 of the BCEA, severance pay (one week’s remuneration per completed year of service) is due on termination if the employee has been employed for more than 24 months on the same or related contracts and the employer employs more than 50 workers. Fixed-term expiry counts as termination for this purpose. The 24-month and 50-employee thresholds are strict — verify both before assuming severance is due.

Can my employer force me to sign a new fixed-term contract if I want to keep working?

Not by coercion. If you refuse to sign and the employer dismisses you for refusing, the dismissal is presumptively automatically unfair under section 187(1)(c) of the LRA, with no cap on compensation. You can also raise a refusal as an unfair labour practice in some circumstances.

How long do I have to take this to the CCMA?

An unfair-dismissal referral must be lodged within 30 calendar days of the date of dismissal. If you miss that window, you can apply for condonation (late filing) but you’ll need to show good cause and reasonable grounds — the sooner the referral is filed, the better.

My employer says the contract just ended and refuses to pay for the last two weeks. What now?

That is treated as an unfair dismissal — the employer cannot retrospectively claim the relationship ended and withhold pay for work actually performed. Lodge a referral with the CCMA (unfair dismissal and/or non-payment of remuneration), keep all payslips, time records, and any written communication showing you were still required to work, and consider consulting an attorney before the conciliation stage if the amount in issue justifies it.

If your fixed-term contract has expired and you are still working — or you have just been told to leave without pay for the post-expiry period — Burger Huyser Attorneys’ labour-law practice can step in before the CCMA conciliation stage. The firm’s labour-law specialist (Marius Ferreira) is supported by the Gauteng branch network, with intake handled through the Linden head office on 011 888 0246 (after-hours 061 516 6878) and through branches in Sandton, Roodepoort, Bedfordview, Alberton, Midrand, Centurion, and Pretoria. Bring your contract, payslips for the post-expiry period, and any written communication from the employer about your status to the first consultation; the firm will give you an honest read on whether you are now on an indefinite contract, what you are owed under section 41 of the BCEA, and what a CCMA referral would look like in your case.