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Who is an Employee? The question addressed


This question still floated around on a daily basis. It is a fact that there are many employers - probably hundreds or even more - who hold to the notion that " he is a contractor - therefore he does not get annual leave for sick leave any other benefits." It is a fact that they are many employers - and I repeat, probably hundreds or even more - who employ people on a contract headed " Independent Contractor Contract of Employment," stating that " he is an independent contractor and therefore does not qualify for annual leave sick leave or any other benefits in the BCEA."

 

I have said it before - and I say it again - that such employers are merely using this as an excuse to escape their obligations in terms of labour legislation, and in many cases to avoid having to provide that employee with other benefits such as pension and medical aid, which he does give to his " permanent" employees. Just as a matter of interest - an independent contractor cannot possibly be an employee. And an employee cannot possibly be an independent contractor. However - we now have some finality, we now have some answers, we now have legislated guidance, and I sincerely hope that what follows is going to put unscrupulous employers in their place, and will enable employees to be fairly treated. 

                                    

The Code of Good Practice - Who Is an Employee? has been published.

 

It is a 53 page document, which addresses this question in great detail. We will be dealing with this Code of Good Practice over the next few weeks. The code commences by setting out various guidelines, the main intention being to " promote clarity and certainty as to who is an employee for the purposes of the Labour Relations Act and other labour legislation." Another purpose of the code is to " ensure that a proper distinction is maintained between the employment relationship which is regulated by labour legislation, and independent contracting."

 

The preceding paragraph spells out quite clearly that an employment relationship and an independent contractor are as far apart as the sun is from the earth. A further purpose is " to ensure that employees - who are in an unequal bargaining position in relation to the employer – are protected through labour law and are not deprived of those protections by contracting arrangements."  This indicates strongly that the legislature is aware that there are unscrupulous employers out there, who hide the true nature of the employment relationship in the disguise of a cleverly worded contract - thus depriving the employee of his legal right to fair treatment.

 

The code further any knowledges that there does exist " a variety of employment relationships in the labour market, including disguised employment, ambiguous employment relationships, non-standard employment,and triangular employment relationships." Thus it is no secret, and those employers to whom such things apply will know who they are, and that they should know that their days are numbered. If the cap fits – wear it!

 

The code requires that any person who is interpreting or applying any of the following Acts, must take this code into account for the purpose of determining whether a particular person is an employee, in terms of the Labour Relations Act 66 of 1995 ( LRA) ; the Basic Conditions Of Employment Act 75 of 1997 (BCEA) ; the Employment Equity Act 55 of 1998 (EEA); or the Skills Development Act 97 of 1998 (SDA).  It is stated further that the code should (must??) also be taken into account in determining whether persons are employees in terms of the Occupational Health and Safety Act 85 of 1993 (OHSA); the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) and the Unemployment Insurance Act 63 of 2001 (UIFA).

 

It is pointed out that the definitions of an employee in the OHSA, COIDA and UIFA differ from the definitions contained in the LRA. However, the code points out that there are sufficient similarities for this code to be of considerable assistance in determining who is an employee in terms of the OHSA and COIDA. The above is essentially what is covered in part 1 of the code. Next week, we will deal with part 2 of the code, which addresses the question of the presumption as to who is an employee, in terms of section 200A of the LRA and in terms of section 83A of the BCEA.

 

If you would like us to mail you a copy of the Code, please send us an e-mail on with the subject line "Code Employee" and we will gladly forward it to you. 

 

Any person applying or even interpreting those sections must take this code into account.

 

For more information contact 

Case Law Summaries and Articles

 

Can employees be dismissed for refusing to accept new terms and conditions of employment?

Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? An initial answer may be, “yes”.

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Escape route: “Resignation with immediate effect”

The latest case in the ‘disciplining employees who have resigned with immediate effect’ saga has brought about more uncertainty as to whether an employee who resigns with immediate effect shortly before a disciplinary hearing can avoid disciplinary action and subsequent dismissal.

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Freedom of expression or incitement to commit an offence? A constitutional challenge

On 4 July 2019, the North Gauteng High Court handed down judgment in the case of The EFF and other v Minister of Justice and Constitutional Development and other (87638/2017 and 45666/2017) in which the EFF and Julius Malema (the applicants) sought to have s18(2)(b) of the Riotous Assemblies Act, No 17 of 1956 (Riotous Act) declared unconstitutional.

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Consolidated, comprehensive or general final written warnings

Regarding dismissal, according to the Code of Good Practice, “the courts have endorsed the concept of corrective or progressive discipline. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.

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