Chapter 4 - The Elusive Employee and Non-Standard Employment Flashcards
What are the key differences between an employee and an independent contractor ?
- Employee performs personal services under the employer’s control and must follow lawful instructions.
- Independent contractor delivers a specific result, is not under direct supervision, and can subcontract work.
Smit case.
What factors in Section 200A of the LRA determine if someone is presumed to be an employee ?
- Work is under control or direction of another person.
- Work hours are controlled by another person.
- The person is integrated into the organisation.
- Has worked at least 40 hours per month for the last three months.
- Is economically dependent on the employer.
What is the purpose of the Dominant Impression Test ?
It determines whether a worker is an employee or an independent contractor based on supervision, integration, and economic dependence.
What major shift did the State Information Technology Agency (SITA) v CCMA case bring ?
The focus moved from the contract terms to the actual employment relationship, considering factors like control, supervision, and dependence.
What are the three key tests used to identify an employee ?
- Supervision-and-control test – If the employer controls how, when, and where work is done, the worker is likely an employee.
- Organisation and Integration test – If the worker is essential to the organisation, they are an employee.
- Economic-Dependency test – If the worker depends financially on the employer, they are an employee.
CCMA case.
How does the law protect workers in Temporary Employment Services (TES) arrangements ?
If a worker works for more than three months in a TES placement, they are deemed an employee of the client and are entitled to labour protections.
What was the ruling in Assign Services (Pty) Ltd v CCMA ?
The Labour Appeal Court and Constitutional Court ruled that after three months, the client becomes the sole employer, and the TES loses its employment role.
What was the legal issue in Uber SA v NUPSAW ?
Whether Uber drivers in South Africa were employees of Uber SA or Uber BV.
What was the ruling in the Uber SA case ?
The Labour Court ruled that Uber South Africa (Uber SA) was not the employer of Uber drivers.
Why was the Uber SA ruling controversial and criticized ?
- The court failed to consider international case law, where Uber drivers were found to be employees in other countries.
- Did not properly analyze the real employer.
- Missed the opportunity to set a precedent for gig-economy workers.
