Chapter 3 Flashcards
The employment relationship is regulated by three sources of law. What are they?
- The Constitution
- Labour legislation
- The law of contract
What is the definition of an employee, as found in s213 of the LRA?
Any person, excluding an independent contractor, who works for another person or for the State, and who receives, or is entitled to receive, any remuneration and any other person who in any manner assists in carrying on or conducting the business of an employer
Why is it important to establish whether a person is an employee or an independent contractor?
Because independent contractors are not protected by the Labour Relations Act
Name the tests used to determine whether a person is an employee of an independent contractor. Give a brief explanation of each
- The control test (employment relationship characterized by element of control)
- The organization test (whether person for part of employer’s organization- dress code, etc)
- The dominant impression test (looks at main impression of relationship)
In 2002 a rebuttable presumption regarding who is an employee was added to the LRA. S200A states:
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What was the importance of the rebuttable presumption?
It incorporates the elements of control, organization, and dominant impression tests and reverses the onus of proof
When do the rebuttable presumption apply?
When employees earn less than the prescribed threshold amount
Recent court decisions have stated that the true test to determine the nature of the relationship between parties is the …..?
Reality test
What is the criteria for the reality test?
- The employer has a right to supervise or control the employee
- The employee forms an integral part of the organization of the employer; and
- The employee is economically dependent on the employer
Must all the criteria of the reality test be met in order to determine the nature of the relationship?
No, any one of the factors is sufficient
True or false: the existence of an employment relationship is determined by the conclusion of a written contract of employment
False. It is not determined by a written employment contract, despite a provision in the BECA requiring a written contract
Written employment contracts can reveal a lot about the nature of the relationship; but the are not conclusive, especially where it is abused by the employer to escape legal obligations. Name cases that demonstrate this
- Denel v Gerber
- Building Bargaining Council v Melmons Cabinets CC
- Dyokhwe v De Kock
- Murray v Minister of Defense
True or false: the existence of an employment relationship is determined by the conclusion of a written contract of employment
False. It is not determined by a written employment contract, despite a provision in the BECA requiring a written contract
Written employment contracts can reveal a lot about the nature of the relationship; but the are not conclusive, especially where it is abused by the employer to escape legal obligations. Name cases that demonstrate this
- Denel v Gerber
- Building Bargaining Council v Melmons Cabinets CC
- Dyokhwe v De Kock
- Murray v Minister of Defense
What is the definition of an employer?
An employer is any person that employs or provides work to an employee and that remunerates the employee for such services, or permits such employee to assist it in the carrying on or conducting of its business
Why do Temporary Employment Services (TES) or labour-brokering agreements make identification of the employer problematic?
- Because the traditional “methods” for determining the employer do not apply to TES agreements. Such as:
1. The dominant impression test
2. The control test
3. The organization test,
4. The rebuttable presumptions, and - The above would indicate that the client is the employer; however the TES is in fact the employer
5. The reality test
The employment contract between a TES and its employees usually contains a ….. clause
Automatic termination