WHO IS AN EMPLOYEE - PART 8

ARTICLE 1

WHO IS AN EMPLOYEE – PART 8

By Nikki Viljoen – Viljoen Consulting February 2008.

Now you have all the details of who an employee is, however human nature being what it is, both you and the person agree that although they fit into at least one of the categories, they are in fact – not an employee. Well the law makes provision for this too. Here are some examples of what you may think and what the law says!

You have a contract with a person that clearly states something along the lines of “this is not a contract of employment” or “this is an independent contractor contract” or “it is agreed by both parties that the person is not an employee” and any other variation on a theme that you may have that means this. Please take note – you cannot do this, well I suppose you can, however that said, it is meaningless because the Code says (and therefore the law says) in paragraph 16:

“a statement in a contract that the applicant is not an employee or is an independent contractor must not be taken as conclusive proof of the status of the applicant.” The code also says “The fact that an applicant satisfies the requirements of presumption by establishing that one of the listed factors is present in the relationship does not establish that the applicant is an employee”.

So as usual the law is as clear as mud!

However an employer can use whatever evidence that they have in order to show that the person is not an employee, despite the fact that they meet at least one of the requirements. If the employee cannot give any evidence proving that the person is not an employee then the person will be considered an employee and that is the end of that.

So be very clear about what you mean when you draw up the contracts.

Let’s have a look at what the Definition of an Employee is.

The Labour Relations Act gives us several definitions of an employee.

Section 78 has a definition that is ‘specifically for the purpose of excluding senior managerial employees from the definition of an employee’. It says:

“employee means any person who is employed in a workplace, except a senior managerial employee whose contract of employment or status confers the authority to do any of the following in the workplace:-
a. represents the employer in dealings with the workplace forum; or
b. determine policy and take decisions on behalf of the employer that may be in conflict with the representation of employees in the workplace.”

This means that a senior managerial person, who can make the abovementioned decisions is by definition – not an employee.

The definition of an Employee in Section 200A, however says:-

“a. any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive any remuneration and
c. any other person who in any manner assists in carrying on or conducting the business of an employer, and ‘employed’ and ‘employment’ have meanings corresponding to that of ‘employee’ – (This definition is also found in the BCEA, the EEA and the SDA.)

This means that the employer can show evidence that the person is an independent contractor who was contracted for particular task, even if that task has taken or will take longer than an average 40 hours over the last three months.

It would then be up to the Court and/or the Tribunal to decide if the person is then in fact an employee.

Next week will be the last one in this particular series and I will continue with when a person becomes an employee.

Nikki is an Internal Auditor and Business Administration Specialist who can be contacted on 083 702 8849 or nikki@viljoenconsulting.co.za