Are you an Employee?
Submitted by: SchoemanLaw Inc
By Celesté Snyders
Category: Employment Law
Introduction
The Labour Relations Act1 (LRA) explains who an employee is. The status of an employee must be established from the beginning of the employment relationship – permanent, fixed term, temporary. The employee/ employer relationship must be confirmed for you, as the employee, to lodge a claim in terms of the LRA at the relevant institution, be it the CCMA or Bargaining Council.
Who is an Employee under the Labour Relations Act?
Section 2132 of the LRA stipulates that an employee is anyone other than an independent contractor who works for another person or assists in conducting an employer's business.
Section 200A of the LRA states that for a person to be presumed an employee, one of the following factors must be present:
The person works for or renders services to the person or entities cited in the contract as the employer; Any one of the following factors is present in their relationship with the person or entity.
In the case of Pam Golding Properties (Pty) LTD v Denise Erasmus and Others3, the Labour Court relied on Section 2134 of the LRA to confirm who an employee is.
The Labour Court further state that the following factors should be considered as a guideline to determine whether a party is an employee5:
"the manner in which the person works is subject to the control or direction of another person. the person's hours of work are subject to the control or direction of another person. in the case of a person who works for an organization, the person forms part of that organization. the person has worked for the other person for an average of at least 40 hours per month over the last three months. the person is economically dependent on the other person for whom he or she works or renders services. the person is provided with the tools of trade or work equipment by the other person. the person only works for or renders services to one person."
Conclusion
Therefore, it is essential to note that if any one the abovementioned factors are present, then the person is presumed to be an employee until the employer or other person proves otherwise.
Contact an attorney at SchoemanLaw for your labour needs by visiting our website at www.schoemanlaw.co.za.
Celesté Snyders | SchoemanLaw Inc
Attorney
www.schoemanlaw.co.za
SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public is a boutique law firm offering its clients access to high quality online legal documents and agreements, together with a wide range of legal services. The firm has an innovative and entrepreneurial mindset that distinguishes it from other law firms. We apply our first-hand understanding of the challenges facing entrepreneurs (regardless of their business size) to develop proven, practical solutions incorporating legal compliance, risk aversion and business sense. We achieve this by offering clients tailored, yet holistic support comprising of legal gap analysis, the design of tailored legal solutions and the practical implementation thereof through training and automation. With your personal interests in mind, our ultimate aim is to implement measures that protect the results of your hard work as effectively as possible.
