STU 3 Identifying the Elusive Employee Flashcards
Scope of labour protection
- Traditionally applies to individuals defined as ‘employees’.
- Courts use common-law employment contract characteristics to determine employee status.
Changing Nature of Employment
- Standard employees are no longer full-time, male, and working regular hours for a single employer.
- New worker types: ‘e-lancers’, ‘zero hour’ contract workers, and platform economy participants.
- Rise of atypical work: triangular labour broker relationships (temporary employment service), fixed-term, and part-time work.
Drivers of Modern Work Relationships
- Employer desire for flexibility.
- Technological innovation.
- Shift to service-based economies.
The LRA definition of an employee
- Any person, excluding an independent contractor, who works for another person or the State and receives or is entitled to remuneration.
- Any other person who assists in carrying on or conducting an employer’s business.
Common-Law Basis of emplyment def
Initially, courts used the common-law contract of employment to define ‘employee’.
Why is the LRA def not sufficient?
This def is not sufficient because if were to apply it as a blanket approach we realise that majority of people are independent contractors which means this law does not protect the majority of people. That basically defeats the purpose .
Smit v Workmen’s Compensation Commissioner on factors determining contract employment
- The object of the contract is to render personal services.
*The employee must perform services personally - The employer may choose when to make use of the services of the employee
- The employee is obliged to carry out lawful commands and instructions of the employer.
- The contract terminates on the death of the employee.
- The contract terminates on the expiry of a period of service in the contract.
Smit v Workmen’s Compensation Commissioner on factors defining an independent contractor
- The object of the contract is the performance of specified work or achievement of a specified result.
- The contractor may perform through others.
*The contractor must perform work (or produce a result) within the period fixed by contract. - The contractor is subservient to the contract, but does not render service under the supervision or control of the employer.
- The contract does not necessarily terminate on the death of the contractor.
- The contract terminates on the completion of work or on the production of a specified result.
Purpose of International Guidelines
Provides member states with guidance on establishing the existence of employment relationships and addresses ‘disguised employment’.
Employee rights
- Right to not be unfairly dismissed (LRA).
- Cannot work more than 45 hours/week (BCEA).
Reasons for the Exclusion of Independent Contractors from def
- Origins trace to early cases distinguishing employment contracts from independent-contractor agreements.
- Employee: Transfers capacity to produce to another.
- Independent Contractor: Committed to producing a specific result.
Common-Law Tests to distinguish between employees and independent contractors
- Supervision-and-Control Test.
- Organization or Integration Test.
- Economic-Dependency Test.
Dominant Impression Test:
- No single factor determines employment relationship.
- Court considers all aspects and evaluates dominant impression.
Additional Criteria:
- Regular fixed payment irrespective of service outcome.
- Same pension or medical fund as other employees.
- Provision of training.
Statutory Definitions Silence
LRA and BCEA do not define when a person becomes an ‘employee’.
Wyeth SA (Pty) Ltd v Manqele & others: Signed contracts but not commenced work still considered employees.
Describe the Employment Relationship Focus according to the SITA v CCMA case
- Shift from contract of employment to employment relationship
- Court did not concern itself with existence of valid contract ofemployment, rather whether employmentexisted
Primary Criteria for Employment Relationship according to SITA v CCMA
- Employer’s right to supervision and control.
- Employee’s integral part in the organization.
- Employee’s economic dependency on the employer.
Changing Nature of Work:
- Post-apartheid South African labour market characterized by casualisation and externalisation.
- Employers informalize working arrangements, depriving employees of statutory rights.
Rebuttable Presumption (2002)
- Introduced in LRA and BCEA.
- Applies to persons earning below a prescribed threshold.
- There’s an exception which grants independent contractors protection under this law (doesn’t classify them as employees)
- This is because these are similar to an employee’s
- However, the person must earn under R254 000 per annum
- Must consider factors listed under s200A
- If the person can meet at least one of these factor,s then they will qualify
- “That who alleges must prove
In proceedings under LRA and BCEA, a person presumed to be an employee if they render services and meet any of seven factors:
(a) Subject to control or direction of another person.
(b) Hours of work are controlled by another person.
(c) Forms part of an organization.
(d) Worked at least 40 hours/month over the last three months.
(e) Economically dependent on the other person.
(f) Provided with tools of trade or work equipment.
(g) Works for or renders service to one person.
Is the presumption affected by the contract form?
- Presumption applies regardless of the contract form.
- Aligns with ILO Recommendation 198, focusing on work performance rather than contract terms.
Effect of presumption on statutory defenition
- Meeting one or more presumption factors does not guarantee ‘employee’ status.
- Presumption shifts the burden of proof to the alleged employer.
Categories of Non-Standard Workers:
Casual workers, home workers, independent contractors, fixed-term and part-time employees classified as ‘vulnerable’ or ‘atypical’.
Three categories of non-standard workers according to the LRA
- employees placed by TES or labour brokers
- fixed-term employees
- part-time employees.
