Who is an em­ployee?

Chronicle (Zimbabwe) - - Business -

been lived by the par­ties to es­tab­lish the true na­ture of the re­la­tion­ship.

At times the courts will rule that the in­di­vid­ual was an em­ployee as op­posed to a ser­vice provider or one with a con­tract for ser­vice.

There are many con­tracts of ser­vice that are in re­al­ity con­tracts of em­ploy­ment as they fail to pass tests like the in­de­pen­dence test. This is a test whereby the law says if the in­di­vid­ual worked stip­u­lated hours, used your tools, used your trans­port, put on your uni­form, ob­served work rules, and when sick was to pro­vide sick leave note from a doc­tor and is ex­pected to do the work per­son­ally, then the in­di­vid­ual is an em­ployee.

These tests are not ap­plied the same in all cases but each case is dealt with in its own mer­its. This means that a num­ber of peo­ple we think are in­de­pen­dent ser­vice providers could eas­ily be em­ploy­ees.

There is also the fa­mous “de­pen­dence test”, that says even if one deemed an in­de­pen­dent con­trac­tor or ser­vice provider in some in­stances where one can prove to the court that he is at all times at the beck and call of the em­ployer and fully depends eco­nom­i­cally on the em­ployer, then the in­di­vid­ual could qual­ify to be an em­ployee even if he presents an in­voice at the end of the month and pays his own taxes.

Usu­ally this test is used by courts to­gether with other tests.

Jane worked as an in­de­pen­dent cleaner and tea lady at a small fac­tory. Ev­ery month-end she pre­sented her in­voice and was paid for her ser­vices. She put on the em­ployer’s uni­form, her work­ing hours were fixed, she had to do the work per­son­ally, she did qual­ify for any type of leave, she was paid for hours worked and the em­ployer pro­vided all the tools and materials to work with.

She signed a new ser­vice con­tract ev­ery three years. When the com­pany was sold to new own­ers and Jane’s con­tract was ter­mi­nated, she claimed that she was an em­ployee and as such she should also be trans­ferred to the new em­ploy­ers.

The court used var­i­ous tests and Jane was de­clared an em­ployee. This case shows that there is a need for one to en­sure that a ser­vice con­tract is legally crafted and lived as per le­gal re­quire­ments.

In con­clu­sion, em­ploy­ers must seek ex­pert ad­vice in craft­ing of dif­fer­ent types of work re­lated con­tracts and also seek guid­ance on how each of the dif­fer­ent types of con­tracts is lived.

Davies Ndu­miso Sibanda can be con­tacted on: email: strat­waysmail@ya­hoo.com or cell num­ber 0772 375 235

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