contract for service vs contract of service Flashcards
define contract of service
an agreement between the employer and the employee to serve for a specified period
Define contract for service
A contract to hire a self employed, individual/organization to carry out specified services
reasons for hiring a consultant
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
what are the different tests to distinguish a contract of service from a contract for services
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
control test
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
integration test
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
four factor test
the presence of the following factors indicate employer employee kind of relationship
conrol
ownership of tools
chance of profit
risk of loss
Economic realities test
if the employee is not economically dependent on the employer and retains the capacity to contract other people
other relevant factors test
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
practical distinction
taxation
employee pay paye
consultants- withholding tax
Governing law
employee- labour laws
consultants - law of contracts
practical distinction
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
Duties of an employer
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
duties of an employee
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
Internal disciplinary hearing
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
Twin Tennets
substantive fairness
procedural fairness
constituents of substantive fairness
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
unfair reasons for termination
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
constituents of procedural fairness
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
The procedure of death termination
Notification of the labor office
payment of outstanding remuneration
Notification of payment of wages
Delivery of wages to be held in trust
summary Dismissal
Takes place when an employer terminates the contract of the employee without notice or with less notice than the employee is entitles to
instances giving rise to termination by redundancy
Relocation of the business
financial distress
Mechanization of the modes of production
Adoption of modern technology
Business reorganization to run it more efficiently
Termination on account of redudancy
- where the employee is a member of a trade union, notify the trade union and labor office in not less than a month
- 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 - payment of wages in lieu notice
- Payment of severance pay- 15 days pay for each completed year of service
grounds that justify misconduct
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
employee duties on termnation
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
