Topic 3 : The 'employee'

Question 1

What is the statutory definition of an employee and in which Act is it defined?

Answer 1

Labour Relations Act sec 213
‘(a) Any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an employer.’
Similar to definition in the Basic Conditions of Employment Act BUT different from S1 of the Employment Equity Act:
Does not exclude independent contractor from the (b) part, but implied they are also excluded.

Question 1

What are the tests used by the courts to determine if a person is an ‘employee’?

Answer 1

1. Control test
2. Organisation or integration test
3. Multiple or dominant impression test
4. Economic dependency test
5. Multifaceted test

Question 2

Explain the control test and the fundamental problems of the test.

Answer 2

Focus on the measure of control that the employer exercises over the rendering of services by the employee - measure of supervision. Traditionally independent contractor will work with minimal supervision.
Problems with the test are that labour has become very specialised and people need less supervision and even independent contractors need some level of supervision.

Question 3

Explain the Organisation or integration test and the fundamental problems of the test.

Answer 3

Is the person part and parcel to the organisation. Forms part of the organisation. Problem is that it’s not always easy to determine the extent of integration.

Question 4

Explain the Multiple or dominant impression test and the fundamental problems of the test.

Answer 4

Considers the following factors:
1. Right of supervision
2. Extent to which the worker depends on the employer (performance of duties)
3. Allowed to work for someone else
4. Required to work specific time
5. Obliged to perform duties personally
6. Paid by a fixed rate or commission
7. Provides own tools
8. Right to discipline worker

Question 5

Explain the Economic dependency test and the fundamental problems of the test.

Answer 5

Focus on whether the employee is primarily dependent on the particular employer for their income

Question 6

Explain the Multifaceted test and the fundamental problems of the test.

Answer 6

1. POD - what the parties call the relationship in the agreement
2. Structure of relationship = reality of the situation (equality of bargaining power)
3. Consider all aspects in teh reality of the situation
4. 3 Subheadings as in SITA case - control, integration and economic dependence
5. Qualitative rather than quantitative approach - some factors weight more.

Question 7

In what legislation is the presumption as to who is an employee? And what does it entail?

Answer 7

LRA S200A and BCEA S83A
One or more of the list of factors are present, the person is presumed to be an employee.

Question 8

What are the factors that need to be present for the presumption as to who is an employee to exist

Answer 8

*1) Manner of work is subject to control of the employer
*2) Hours of work subject to control of employer
*3) Worker forms part of the organisation of the employer
*4) Person has worked for the employer for an average of at least 40 hours per month over the last 3 months
*5) Person is economically dependent on the employer
*6) The employer provides the tools of the trade or work equipment
*7) The worker only works for or renders services to one person (the employer)