Who is an employee, what are their rights?

OUR labour laws are only applicable between employer and employee. These laws are specifically placed on the statute book in order to regulate the working environment and in order to protect and enhance the rights of employees against any sort of exploitation.

Furthermore, these laws also outline certain duties and structures whereby employers can control and regulate their staff.

In many instances, employers do try to structure the working environment and relationship to avoid strict compliance with our labour legislation.

If the relationship can be termed to be contractual between a company and an independent contractor, then the company would not be bound by any of the controls of our labour legislation.

In many instances, these controls are costly for employers and are also time consuming.

I strongly believe that many of these controls should be relaxed. But I certainly don’t believe that an employer ought to try to structure the working environment in order to avoid the labour legislation altogether.

Our law has come up with a definition of an employee which is contained in Section 200A of the Labour Relations Act. Furthermore, a similar definition is contained in the Basic Conditions of Employment Act at Section 83A.

We have enormous unemployment in South Africa and there is often a desperation by future employees to sign almost anything just to gain access to an employment position. This is exploited by some employers who try to disguise the employment outside the realms of our labour law.

Furthermore, there is a code of good practice as part of the Labour Relations Act which outlines some of the guidelines for determining whether persons are employees.

It must be remembered that even short-term employment or non-standard employment fall under the Labour Relations Act. For instance, an employee who has received a contract for one week only would still have all the rights as contained in our labour legislation.

In addition, even someone who receives commission only has those rights. In essence, even if there is a signed contract indicating that the relationship is not one of employment, the courts will investigate this and have a look at the actual structure as opposed to the wording of the contract.

It must be remembered that employees have other protections in terms of the Unemployment Insurance Fund and the Workmen’s Compensation Fund.

There is a presumption contained in our law that a person would be an employee if there are positive answers to some of the questions posed by the Labour Relations Act.

In the triangular employment relationship, a person who is employed by a labour broker could claim permanent employment with the client of the labour broker after having served for three months in that position.

Regardless of the form of the contract that the person signs, the actual nature of the employment relationship would be described by the day to day running of the contract. It would then be for the employer to show that the contractor is not an employee.

There are seven factors which would indicate an employment relationship.

One is the control the employer has over the employee. This control stretches through the hours of work and in fact if that person is economically dependent on the other person for whom he or she works or renders services.

If a person forms part of the organisation and is provided with the tools of the trade or other equipment, then the individual is an employee.

Finally, any person who is an employee, no matter what the circumstances, is entitled to the rights as contained in the Basic Conditions of Employment Act. Each employer must have a chart outlining a summary of the Basic Conditions of Employment Act for all employees to see.

If in doubt, the Department of Labour can be contacted which would then investigate the employer’s premises and conduct an oversight visit in order to determine whether the people are employees or not. It doesn’t help to have a sophisticated set of labour laws if these are not applicable to a typical employment relationship.

Indeed, our laws bend over backwards in order to assist employees when their employers are trying to avoid the relationship being defined as employment.