Chapter 3 (Meaning of Employee)

Question 1

What is the LRA Section 231 definition of employee? Which other Act and provision has identical definition?

Answer 1

1. a. Any person, excluding an independent contractor, who works for another person or the State, and who receives or is it entitled to receive remuneration.
2. b. Any other person, who in any manner, assists in the carrying on or conducting the business of the employer.
3. Basic conditions of employment act, section 1. The Equal employment act, section 1 also has a similar BUT NOT identical definition.

Question 2

What are the important features of the definition of an employee?

Answer 2

1. Broad definition so as to have a wide coverage. This therefore includes groups of workers such as domestic workers, farm workers, etc.
2. No requirement of a valid contract of employment. Therefore the absence of a contract does not necessarily exclude a person from protection by labour legislation(see Kylie v CCMA).
3. At the heart of the concept of “employee” is not the common law contract of employment but rather the existence of an ‘employment relationship’.

Question 3

Kylie V CCMA

Answer 3

1. Facts
   The applicant was a prostitute who lived in her employer’s premises and was subject to workplace rules. A breach of some of these rules resulted in her dismissal.
2. Legal question
   Does the applicant fall under the definition of employee under the LRA? If she does fall under the definition of employee, is she entitled to protection under the LRA as prostitution is still a crime?
3. The decision
   The Labour Court, on appeal, accepted the applicant’s status as an employee and that she was entitled to protection under the LRA. The court did caution that the extent of the protection and the remedies depend on the circumstances of each case.

Question 4

Discovery Health v CCMA

Answer 4

1. Facts
   A foreign employee who was a lawful resident of SA but lacked the necessary work permit at the time of employment at DH. When DH discovered that he did not have the necessary permit the terminated his employment.
2. Legal question
   a. Is the contractor of employment concluded by the parties invalid because 1 of the parties did not have a permit issued under the Immigration Act?
   b. Does the definition of employee in s213 of LRA depend on an underlying (and valid) common law contract of employment?
3. Decision (Labour Court)
   Considered the Immigration Act and concluded that the Immigration Act:
   - does not say that a contract of employment concluded w/o the necessary permit is void.
   - does not say that a person who accepts work under these circumstances commits an offence
   - prohibits the act of employing a person who is a foreigner in contravention of the Immigration Act. The focus is on the employer and not the employee.

Question 5

LRA exclusions to definition of employee

Answer 5

Section 2 excludes:

1. Members of the National Defence Force
2. State Security Agency

Question 6

BCEA exclusions and inclusions from definition of employee

Answer 6

Section 3 of BCEA excludes:

1. State Security Agency
2. Unpaid volunteers working for an organisation serving a charitable purpose

Section 83(1) includes:
1. The Minister of Labour may deem any category of persons to be emplyees for the purposes of the whole or any part of the BCEA

Question 7

EEA exclusions and inclusions from definition of employee

Answer 7

Section 4 of EEA excludes:

1. National Defence Force
2. National Intelligence Agency
3. SA Secret Service
4. SA National Academy of Intelligence

Inclusions:
1. Applicants for employment are included under its protection against unfair discrimination

Question 8

When does employment start?

Answer 8

In Wyeth SA (Pty) Ltd v Manqele the Labour Court held that the term ‘employee’ in the LRA encompasses a person who has concluded a contract of employment but who has not yet started working

Question 9

When does employment terminate?

Answer 9

1. In a breach of contract, where the innocent party elects not to enforce the contract but ‘accepts’ the breach.
2. Resignation through notice, employment terminates at the end of the notice period.
3. Remember, in terms of Labour Law, there must be an ‘employment relationship’ and the employment relationship terminates once there is effective termination of this relationship, regardless of whether this is lawful or not in terms of law of contract

Question 10

How does one differentiate between an employee and an independent contractor?

Answer 10

1. Control test
2. Organisation test
3. Dominant impression test

Question 11

Describe the Control Test and its 2 fundamental problems.

Answer 11

There control test - considers how much control exercises over the employee. The right to control is more extensive in the employment contract, eg employer telling employee what to do, when, how and where to do it.

Fundamental problems with control test
1. In modern society, labour has become increasingly specialised, therefore the less actual control an employer can exercise thus limiting the test in determining whether someone is an employee or an independent contractor.

2. Even in the case of independent contractors a measure of control is exercised over the contractor.

Question 12

Discuss the key feature and the problems related to the organisation (integration) test.

Answer 12

Labour Court described the test as follows: a person is an employee is part and parcel of the organisation, whereas the work of an independent contractor, although done for the business, is not integrated into it but is accessory to it.

The problem with this test is how does one know the extent of integration sufficient to qualify as an employee?

Question 13

State 8 factors that the courts would consider to obtain a dominant impression.

Answer 13

1. Right of supervision.
2. Extent to which the worker depends on the employer to discharge his/her duties.
3. Whether the worker is allowed to work for another.
4. Whether the worker is required to devote a specific time to his/her work.
5. Whether the worker is obliged to perform the work personally.
6. Whether the worker is paid at a fixed rate or by commission.
7. Whether the worker provides his/her own tools and equipment.
8. Whether the employer has the right to discipline the worker. Normally indicative of control.

Question 14

Discuss the 2 cases that considered the Dominant Impression Test

Answer 14

1. Smit V Workman’s Compensation Commissioner

2. Medical Association of SA v Minister of Health

Question 15

Which legislation and sections discusses the presumption as to who is an employee? What are the provisions in the section?

Answer 15

1. LRA section 200A

2. BCEA section 83A

Question 16

Classify the different types of employment.

Answer 16

1. Standard employment
   - Permanent full time employment
2. Non standard employment
   - Fixed term employment
   - Part time employment
   - Temporary employment services

Question 17

What are the principles of a fixed term contract? Also expand on the disadvantages of fixed term contracts.

Answer 17

1. Fixed term contract automatically expires:
   a. On the expiry of the period of service
   b. On the completion of the project
   c. On the occurrence of the specified future event
2. a. An employer could use fixed term contracts to protect him/herself from being sued for unfair dismissal. Remedied by s186(1) of the LRA - states that where a fixed term employee has reasonable expectation of renewal, or even permanent employment, and the contract is not renewed, or permanent employment is not offered this is deemed a ‘dismissal’.
   b. These types of employees are often deprived of certain benefits e.g medical aid and pension