contract for service vs contract of service Flashcards

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1
Q

define contract of service

A

an agreement between the employer and the employee to serve for a specified period

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2
Q

Define contract for service

A

A contract to hire a self employed, individual/organization to carry out specified services

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3
Q

reasons for hiring a consultant

A

To bring in needed expertise
identify a certain internal problem. i.e forensic audit
supplement employees output
catalyst for change where the organization is seeking to rebrand
where a certain organizational process requires impartiality i.e lying of staff

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4
Q

what are the different tests to distinguish a contract of service from a contract for services

A

contract wording test- looks at what the contract says and how do the parties involved describe themselves
critics
the parties can lie
the contract can be confusing
no contract

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5
Q

control test

A

this type of test looks at the power that the employer has in directing what is to be done and controlling how it is supposed to be done
critic
experts who are employees need not be told what to do

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6
Q

integration test

A

this type of test is conducted by looking at the kind of work they do and if its core to the business and if it is then they are likely to be employees
how integral is your work to the business
critic
you can be a consultant but still, be part of the core business

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7
Q

four factor test

A

the presence of the following factors indicate employer employee kind of relationship
conrol
ownership of tools
chance of profit
risk of loss

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8
Q

Economic realities test

A

if the employee is not economically dependent on the employer and retains the capacity to contract other people

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9
Q

other relevant factors test

A

the contractor will work his own hours
raise an invoice
free to contract other
registered tax payer
will not be subject to employee matters i.e deduction of paye
run his own business

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10
Q

practical distinction

A

taxation
employee pay paye
consultants- withholding tax
Governing law
employee- labour laws
consultants - law of contracts

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10
Q

practical distinction

A

taxation
employee pay paye
consultants- withholding tax
Governing law
employee- labour laws
consultants - law of contracts
Benefits
entitled to benefits
not entitled to benefits
Resolution Forum
emloyees- employment and labour relations court
consultants - commercial courts

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11
Q

Duties of an employer

A

where the employees are more than 20 issue a policy statement on sexual harassment
issue a statement of disciplinary rules where the employees are more than 50
To display a statement of employees’ rights
provide a clean and healthy workspace for the employees
to pay the entire amount of wages earnrd by tan employee in respect to work
draw up a contract of service stating the particulars of employment and ensure its consented by the employees
provide equal opportunity during recruitment

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12
Q

duties of an employee

A

not to sexually harras fellow employees
To perform any work which is their duty
to obey lawfully and proper orders issued by the employer or person in authority
to appear and remain at their place of work unless leave is granted
observe the hours of work prescribed in the contract of service
Not to disclose any kind of information classified as confidential by the employer

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13
Q

Internal disciplinary hearing

A

The employee is informed of the allegations against them in writing
the employee is requested to show cause why a disciplinary process should be constituted
An employee is given sufficient time to prepare for the defense prior to the disciplinary hearing
during the hearing, the employee is allowed to heard represented and bring witnesses
during the hearing, the employee is allowed to examine witnesses
the outcome should then be communicated in writing to the employee
Employee informed of the right mode and place of instituting an appeal

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14
Q

Twin Tennets

A

substantive fairness
procedural fairness

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15
Q

constituents of substantive fairness

A

The employer shall be required to prove the reason for termination and if he fails then it shall be deemed to be unfair
the reason for the termination is a fair reason relating to an employees capacity . conduct capability or operational reason

16
Q

unfair reasons for termination

A

If the employee is pregnant
if the employee takes or proposes to take leave
if the employee seeks office in a trade union
employees membership to a trade union
Employee’s race, colour, sex, religion, nationality, political opinion or affiliation
employee initiation of a complaint or legal proceeding against the employer except where the complaint is seen to be irresponsible and without foundation

17
Q

constituents of procedural fairness

A

The employee should be notified of the reason for the termination of employment
Hearing of the employee’s response to the reasons by an unbiased tribunal
consideration of the employee or their representative’s contribution

18
Q

The procedure of death termination

A

Notification of the labor office
payment of outstanding remuneration
Notification of payment of wages
Delivery of wages to be held in trust

19
Q

summary Dismissal

A

Takes place when an employer terminates the contract of the employee without notice or with less notice than the employee is entitles to

20
Q

instances giving rise to termination by redundancy

A

Relocation of the business
financial distress
Mechanization of the modes of production
Adoption of modern technology
Business reorganization to run it more efficiently

21
Q

Termination on account of redudancy

A
  1. where the employee is a member of a trade union, notify the trade union and labor office in not less than a month
  2. notification of the employee and the labour office but doesn’t prescribe the date
    2 criteria for positions to be declared redundant is given
    3payment of outsanding leave in cash
  3. payment of wages in lieu notice
  4. Payment of severance pay- 15 days pay for each completed year of service
22
Q

grounds that justify misconduct

A

where an employee fails to show up for work and is not on leave
where an employee commits a criminal offence against his employer
comes to work intoxicated
fails to obey a command that was in his scope of duty
appears to work intoxicated during work and renders himself incapable or unwilling to work

23
Q

employee duties on termnation

A

payment of service pay
payment of lieu of notice
issuance of termination notice
explain the notice in a language the employee understands
issuance of certificate of service
retention of the employee employment records

24
Q

reuirements where service pay doesnt apply

A

member of a pension scheme
memeber of national social security fund
a gratuity or servuce pay scheme established by a collective agreement

25
Q

constituents of a certificate of service

A

name of the employee
name of the employer
date when the employment commenced
date when the employment ceased
nature and usual place of work

26
Q

employees obligations on termination

A

issuance of termination notice
hand over employers property
payment in lieu of notice

27
Q

alternative dispute resolutions

A

conciliation - a conciliator is called by the two parties to enable them find a solution and he or she may not be neutral and the reward tgere is not binding
mediation - a neutral third party is elected to enable the parties reach a negotiated solution and the award is not binding
Arbitration - a private forum chosen by the parties for dispute resolution and the award given is final

28
Q

court interferance with an arbitrary award

A

bribery
The arbtration agreement is null and void
there is infact no disputes between the two parties
application to the high court before or during arbitral proceedings to request for an interim form of protection is not inconsistent with arbitration clause

28
Q

court interferance with an arbitrary award

A

bribery
The arbitration agreement is null and void
there is infact no disputes between the two parties
application to the high court before or during arbitral proceedings to request for an interim form of protection is not inconsistent with the arbitration clause
party to the arbitration agreement was under some incapacity
the party making the application was not given proper notice on the appointment of an arbitrator
composition of the arbitral tribunal or procedure was not in accordance with the agreement of the parties

29
Q

Recognition agreement

A

an agreement made in writing between trade unions and employers or employer organizations regulating the recognition of the trade union as the representative of unionisable employees intrests

30
Q

contents of recognition agreement

A

Election of trade union representatives from the members of a trade union
grant reasonable access in to the employers premises to puruse lawfull union activities

31
Q

collective bargaining process

A

recognition of a trade union and signing of a recognition agreement by the trade union and employer
negotiation of the terms of collective agreement
The collective agreement is then reduced to writing and is signed by the CEO of the employer and the secretary general of the trade union

32
Q

sources of labour laws

A

1.the constitution
2. employment and labour relations court act- Establish the ELRC to listen to diputes concerning employment and labour relations
3. occupational health and safety act - provide for the safety, health and welfare of all people legally present at the workplace
4, Employment act - define the fundamental rights of emoloyees provide basic conditions for employment and protection of child employment
5.labour institutions act establishes labour institutions and define their functions and powers
6.work injury benefits act- provide compensations to employees for work-related injuries and diseases contracted in their line of duty
7.labour relations act- consolidate the law relating to trade unions and trade disputes

33
Q

international and regional framework

A

Covenant on the elimination of all formms of discrimination against women
UN global compact
international labour organizations convention
African charter on human and people rights
international covenant on civil and political rights
international covenant on economic social and cultural rights
universal declaration of human rights