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Labour Protect Advice Forum -> Labour Protect Advice Forum -> Unfair termination of my independent contract due to Breach of perfomance Clause
Post Info TOPIC: Unfair termination of my independent contract due to Breach of perfomance Clause
Independent Contractor

Date:
Unfair termination of my independent contract due to Breach of perfomance Clause
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I will post the clause in the contract below. I was served with notice to redeem myself within 7 days effective immediately on the 23rd October 2019. I had already booked leave (for my contract to be suspended) and it was approved. On the 23rd,24th,25th and 28th I did not meet my production targets due to load shedding of that week, this was national but the manager insist i should have planned around the schedules published even though they were not accurate most of the time. I performed and upheld my performance conditions from 30th onwards. 30th,31st October and 1st of october falls within the 7 days I should mention, meaning I have redeemed myself within those 7 days, the contract doe not say redeem whole 7 days, and I was ill which I have informed the manager about that.

Below are the material parts of the contract that I signed with the company. Now I am seeking advice if I can pursue a case of unfair termination of contract due to the fact that I redeemed myself within 7 days. Contract below

 

6.1        

The Contractor:

 

           6.1.1

undertakes to provide the manager with a monthly invoice (in schedule form), whereupon the manager shall ensure that the Contractor fees are duly paid, monthly in arrears, in accordance with the provisions of the attached schedule A;

 

           6.1.2

shall be subject to financial penalty for each error processed, (the detail of which is contained in schedule A);

 

           6.1.3      

shall not be compensated for any system down time; and

 

           6.1.4

Company may alter the content of schedule A from time to time in accordance with business requirements.

 

6.2

Notwithstanding the fact that the Contractor is an independent contractor, Company will be obligated to deduct income tax from the Contractor fees unless the Contractor provides Company with an original income tax directive exempting Company from this obligation.

 

7.

Other interests / business / employment

Company acknowledges that the Contractor is an independent contractor. As such the Capturer may engage in other business interests. However, due to the fact that the Capturer will have access to Company systems, intellectual property and its client base, the Contractor may not conduct any business on behalf of any client which is in competition with Company without first obtaining written permission from Company to do so.

 

8.

Separation of the Contractor Business

 

Subject to clause 7, should the Contractor perform assessment work for any other client, the Contractor shall keep the business of Company separate from the business of the Contractor other clients. In particular, under no circumstances, may the Contractor divulge any information pertaining to any client of Company, to any of the Contractor other clients. A breach of this clause shall be material and may give rise to termination of the agreement and a claim for damages against the Contractor. 

 

 

 

10.

Breach

 

 10.1           

This agreement may be cancelled by Company in the event of the Contractor committing a material breach of this agreement.

 

 10.2

In respect of any other breach, Company shall give the Contractor written notice to remedy the breach within 7 days thereof.  If the breach is not remedied within such time period Company may cancel this agreement without prejudice to any other rights it may have at law.

 

 

  

 

 

 



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LABOUR PROTECT

Date:
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Good day,

It appears that there is a measure of control over you by the company.

How are you an independent contractor?

I would advise that you see an attorney immediately. the issue that you will have to resolve first is whether you are an employee of the company of if you work on your own accord(independent contractor).

If you are an independent contractor, the CCMA will not have jurisdiction to entertain the dispute and you will have to utilize ordinary methods of litigation(magistrates court or high court). 

however if your are an ordinary employee, which will have to be determined by your attorney of record then the CCMA will have jurisdiction.

LP



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Anonymous

Date:
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Good day I am an independent contractor and was dismissed by my service provider for NON-COMPLIANCE but it was never the case... I never got a termination letter or a chance to fix the problem as stated in the contract. I went to the ccma but my case were thrown out because I'm an independent contractor...I need help... thanks

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Anonymous

Date:
Permalink   
 

Hello

 

If you are an independent contractor then the correct course to follow would be to pursue the matter as breach of contract in what's referred to as a civil court. You will probably need an attorney to assist with this process. In essence it will be treated as a contractual case rather than an employment matter.

 

Kind Regards

KM, Labour Protect



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