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Who is an Employee? The question addressed (Part 3)


When looking deeper into the rebuttable presumption, one might conclude that it is sufficient for any one of the seven listed factors to be present in the employment relationship to conclude that the applicant is an employee. Or one might conclude that provided the contract states that " this is not a contract of employment, but is a independent contractor contract," would be sufficient to establish that the relationship is an independent contractor arrangement.

 

Or perhaps the contract states words like " it is acknowledged by both parties that the person is not an employee, but remains an independent contractor, notwithstanding anything to the contrary in this contract."  Unfortunately, the Code has anticipated such happenings – and it states clearly in paragraph 16 that " a statement in a contract that the applicant is not an employee or is an independent contractor must not be taken as conclusive proof of the status of the applicant."

 

The Code states further that "  The fact that an applicant satisfies the requirements of the presumption by establishing that one of the listed factors is present in the relationship does not establish that the applicant is an employee."  "However, the onus then falls on the "employer" to lead evidence to prove that the applicant is not an employee and that the relationship is in fact one of independent contracting. If the respondent fails to lead satisfactory evidence, the applicant must be held to be an employee."

     

Thus, an employee can show that one of the seven factors listed in Part 2 of this article applies - it is then up to the employer to lead evidence to prove that despite the existence of one of the factors, the applicant is in fact not an employee but an independent contractor. If the employer cannot prove that, then the applicant will be ruled to be an employee. From the above, it becomes obvious that there are no " grey areas" in this matter - there are definite lines that have been drawn.

 

INTERPRETING THE DEFINITION OF AN EMPLOYEE.

 

The Labour Relations Act provides various definitions of "an employee." Section 78 provides a definition, specifically for the purpose of excluding senior managerial employees from the definition of "an employee."

 

This section states as follows:

" employee" means any person who is employed in a workplace, except a senior managerial employee whose contract of employment or status confers the authority to do any of the following in the workplace:-

 

[a] represents the employer in dealings with the workplace forum ; or

[b] determine policy and take decisions on behalf of the employer that may be in conflict with the representation of employees in the workplace.

 

Therefore, section 78 states that a senior managerial employee who has the authority to do any of the above, is excluded from the definition of : "an employee." In any event, senior managerial employees would normally be earning more than the threshold amount of R115 572 per year, which would, in any case, exclude them from the definition of " employee." Section 78 was probably introduced to remove any doubt. Section 200A has this definition of " an employee" :

 

(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,  and 'employed' and 'employment' have meanings corresponding to that of 'employee. ('This definition is also found in the BCEA, the EEA and the SDA.)

 

In paragraph 22, the Code states that "The interpretation given to the term "employee" by the courts prior to the insertion into the LRA of the presumption (section 200A) as to who is an employee, remains relevant.

 

This is so because -

(a) the presumption only applies to employees who earn less than the earnings threshold determined by the Minister;

(b) in the case of employees who earn less than the threshold amount, the employer may lead evidence to rebut the presumption, and establish that they are not an "employee".

     

For example, if the person who claims to be an employee establishes that he or she has worked for the other person for an average of at least 40hours over the last three months, he or she must be presumed to be an employee.

 

The 'employer' may, however, lead evidence that that person is an independent contractor engaged to perform a particular task. The court or tribunal will then have to determine whether that person is an employee. Next week, we will address the question of : " when does a person become an employee?"

 

Any inquiries regarding this series of articles can be addressed [email protected]

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at [email protected]

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

Strategic Human Resources Management (HRM) and - Business Partnering

27, 28 & 29 October 2021 (08:30 - 16:00)

Interactive Online Course

Employment Equity Committee Training

27 October 2021 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

28 October 2021 (08:30 - 16:00)

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

28 October 2021 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

29 October 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

19 November 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

10, 11 & 12 November 2021 (08:30 - 16:00)

Interactive Online Course

Basic Labour Relations

12 November 2021 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management

18 November 2021 (08:30 – 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

19 November 2021 (09:00 - 12:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

25 November 2021 (08:30 - 16:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

26 November 2021 (09:00 - 12:00)

Interactive Online Course

 

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