Pecton Outsourcing Solutions CC v Pillemer NO (D1256/13) [2015] ZALCD 66; [2015] JOL 34585 (LC) (12 November 2015) per B Whitcher J at para 43.

I prefer an approach that starts by examining, in all cases where the termination of TES contracts of employment are triggered by the will of a client, whether the underlying cause of the termination, in relation to the TES employer, is one for which employees typically are dismissed.  These are reasons relating to misconduct, incapacity, operational requirements or no reason at all.  In this determination, the courts should recognise the content of the reason for the termination over the form of the contractual device covering it.  If the facts show that the reason for termination of the contract is one that typically constitutes a reason for a dismissal, then this is a clue that, as the commissioner succinctly put it, there may be an attempt to ‘contract out’ of section 188 of the LRA.  In the absence of evidence to the contrary, the termination thus becomes a dismissal and the underlying reasons for it will be ventilated in forums the LRA has set aside for this purpose.