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How the law defines who is an employee

Michael Bagraim writes that it is extremely important that every entity understand what is an employee and what governs the relationship. File picture: African News Agency(ANA)

Michael Bagraim writes that it is extremely important that every entity understand what is an employee and what governs the relationship. File picture: African News Agency(ANA)

Published Jun 3, 2021


The labour laws are specifically meant to govern and control the employment relationship.

It is extremely important that every entity understand what is an employee and what governs the relationship.

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Obviously there are many types of structured engagements whereby one person working for another might fall outside the employment relationship.

For instance, a relationship between a house owner and an external plumber would not be an employment relationship, although the householder would pay that person and would ask the person to perform certain services in accordance with their professional ability.

That would be known as an independent contractors arrangement. Understandably, many employers do try to structure their relationships outside the ambit of our labour law.

There are certain benefits normally attributed to employees which won’t be given to them if they are outside the employment relationship.

Any relationship outside the employment relationship will be governed by our laws of contract and might not be as beneficial to the individual worker.

It should also be noted that some of our labour legislation is redefining the definition of an employee. Some of the new legislation is referring to “worker” which has a wider definition.

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For instance, our National Minimum Wage Legislation does have a slightly different interpretation to the other pieces of legislation. It is vital that every business entity properly investigate what type of relationship it is and get professional advice.

It doesn’t help to create a sham independent contractors relationship as our courts, especially our Labour Courts, often go beyond the structure and wording of the contracts and look at the real nature of the relationship.

It is vital for every possible employer to have a careful look at the Basic Conditions of Employment Act, particularly chapter 11, which deals with temporary employment services; deeming of persons as employees; presumption as to who is an employee; duration of employment; and various codes of good practice.

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In particular, the presumption about who is an employee is outlined under Section 83A.

There are seven sub-sections that outline why a relationship is deemed to be an employment relationship.

It is also important to understand that should any individual employee earn below the threshold as set by the Department of Labour, the person will fall under those deeming provisions to easily be structured as an employee.

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The presumption does not apply to any person who earns in excess of the amount determined by the minister of employment and labour. Obviously, any person who is not defined by the employer as an employee may approach the Commission for Conciliation, Mediation and Arbitration or the Labour Court for those bodies to determine whether an employment relationship exists.

The arbitrators and the judges look at the working arrangement and surrounding factors to make a determination. The judges and the arbitrators are not bound solely by the written memorial as structured by individuals.

There is a slightly different relationship between the government in specific categories of persons who may be deemed to be employees for the purposes of the Basic Conditions of Employment Act and also may be deemed to be part of the Unemployment Insurance Act.

Temporary Employment Services are a specific type of employer who provides employees to third parties to perform certain temporary functions.

The Temporary Employment Service and the client are jointly and severally liable if the Temporary Employment Service, in respect of any employee who provides services to that client, does not comply with this act or a Sectoral Determination.

Once again, our courts have been strict on this relationship and have said that any individual placed at a client in order to perform work on behalf of the Temporary Employment Service and who earns under the threshold will be deemed to be an employee of that client after three months of work.

It is becoming more and more difficult for so-called employers to try to structure their relationships outside the labour relations arena.

The rights of employees are strictly entrenched in our labour laws which are specifically put in place under the Constitution.

Employees have rights such as the ability to join trade unions and to discuss their conditions of employment with their fellow employees.

Employees also have the right to refuse to comply with an instruction that is contrary to the act or any other Sectoral Determination.

Likewise, employees may refuse to agree to any term or condition of employment that is contrary to our labour legislation.

* Michael Bagraim is a labour lawyer. He can be contacted at [email protected]

** The views expressed here are not necessarily those of Independent Media.

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