Chapter 5 Flashcards
What is the stautory definition of an employee?
any person, excluding an independent contractor, who works for another person or the State and receives or is entitled to receive remuneration, or who assists in carrying on the business of an employer.
What is the common law test for employment.
Is primarily concerned with the nature of the contract between the parties, which remains and important consideration in determining whether or not parties are in an employment relationship.
What is the control test and refer to legislation.
determines if a worker is an employee or an independent contractor by examining who has the right to control the manner, time, and place of work.
In Colonial Mutual Life Assurance Society Ltd v MacDonald.
Define the dominant impression test and refer to relevant case law.
a method used to determine if a person is an employee or an independent contractor, focusing on the overall nature of the relationship, rather than specific contractual terms.
Ongevallekommissaris v Onderlinge Versekerings Genootskap Avbob
What is locatio conductio operarum and locatio conductio operis
In Roman law, locatio conductio operarum refers to a contract of employment (hire of services), while locatio conductio operis refers to a contract for work (hire of a specific task or result).
What is a statutory presumption according to section 200A of the LRA
a person is an employee if they earn below a specified threshold and certain factors, such as control over their work or economic dependence, are present, shifting the burden of proof to the employer to prove otherwise.
The Code gives effect to ILO Recommendation 198 directed at countering disgusted employment and consists of what?
Part 1 - The application of the Code and issues of Interpretation.
Part 2 - The rebuttable presumption as to who is an employee.
Part 3 - The Interpretation of the definition of employee contained in the LRA, BCEA, EEA and the SDA.
Part 4 - The employment status of persons employed by temporary employment services.
Part 5 - The principles of interpretation that are applicable to interpreting the statutory presumptions of employment and statutory definitions of an employee.
Part 6 - Employment status for the purposes of the oHSA, COIDA and UIA.
What are TES?
Temporary Employment Services, also known as labour brokers, and refers to businesses that provide employees to clients for a specific period or project.
Which section and Act is the TES mentioned in?
In Labour Relations Act, section 198(1) and (2)
The definition of temporary service according to the Act.
Is to work for a client by an employee
1. For a period not exceeding three months,
2. As a substitute for an employee of the client who is temporarily absent
3. In a category of work and for any period of time which is determined to be a temporary service by a collective agreement concluded in a bargaining council, a sectoral determination or notice published by the Minister
