Study Unit 3 Flashcards
The Elusive Employee
Which common law tests distinguish between employees and independent contractors?
Supervision and Control Test
Organisation Test
Economic Dependence Test
Who is an employee according to section 213 of the LRA?
Any person who works for another person and is entitled to receive remuneration for their work excluding independent contactors
What is the presumption of employment concept?
The LRA and BCEA provide that anyone who alleges they are an employee is presumed to be an employee if they render services to another person and one of the 7 factors of the presumption are present.
What are the 7 factors that trigger the presumption?
1.Person’s work is subject to control and supervision of another.
2.Persons hours of work are specified.
3.Person forms part of the organisation.
4.Person worked for 40hrs p/weekfor min 3 months.
5.Person is economically dependent on the other person.
6.Provided with tools of trade.
7.Person only works for one person.
Who bears the onus of proving employment?
The employee must prove they are an employee
Who is allowed to use the presumption?
The presumption is only available to those who earn below the threshold of R241 110,59
What did the Smit v Worksmens case provide for?
Factors that distinguish between independent contractors and employees but the presumption of employment is important.
What is the dominant impression test?
Court asks “Is the dominant impression that the person is an employee?” after consideration of the 7 factors that trigger the presumption of employment.
What principles did the SITA v CCMA case establish?
1.Focus on relationship between employer and employee and not solely the contract of employment
2.Criteria for employment relationship
a. employer’s right to supervision and control
b. whether employee forms integral part of organisation
c. whether employee was economically dependent
What is the reality test?
The three factors established in the SITA case
What factors distinguish an independent contractor from an employee? (Smit v Worksmens)
1.Object of contract is performance of specific work.
2.Contractor can work through others.
3.Work must be completed within a fixed period.
4.Not under supervision of employer
5. contract does not terminate on death of contractor.
6.Contract terminates on completion of work
What is the current Threshold amount?
R254 371,67 (1 April 2024)
