Section 213 of the Labour Relations Act (LRA) provides that an employee is anyone, other than an independent contractor who works for another person or who assists in conducting the business of an employer. This definition omits only service providers who are external and/or truly autonomous.
Section 200A of the LRA states that, unless the contrary is proven and regardless of the form of the contract a person is presumed to be an employee if any one of the following circumstances exist:
- The manner in which the person works or his/her hours of work is/are subject to the direction or control of another person
- The person forms part of the organisation
- The person has worked for the other person for an average of at least 40 hours per month for the last 3 months
- The person is economically dependent on the other person
- The person is provided with tools of trade by the other person
- The person only provides services to one person.
This law applies to government, business, welfare, NGO, religious and all other employers except perhaps the Secret Service, National Intelligence Agency and Defence Force.
It could be argued that anyone doing work as a means of receiving training in their trade or profession would be defined as a learner and not as an employee. For example, the Skills Development Act and the Manpower Training Act appear to provide for special circumstances where people are signed up for learnerships and apprenticeships purely for purposes of advancing their learning and qualifications. Work contracts that clearly fall under the jurisdiction of either of these two acts may well not qualify as employment contracts.
In Mokone vs Highveld Steel and Vanadium (2005, 12 BALR 1245) the arbitrator found that the applicant had done some work for the respondent while he was completing studies financed by the respondent. Despite this the arbitrator found that the applicant had not been an employee in terms of the LRA and that the Council therefore did not have jurisdiction to hear the case.
However, in the case of Andreanis vs the Department of Health (2006, 5 BALR 461) Ms Andreanis was appointed as an intern at a state hospital. Four years later she was told to vacate her post as her internship period had come to an end. She claimed unfair dismissal as she believed that she was an employee and that the end of her internship was irrelevant to her employment status.
The employer claimed that:
- Ms Andreanis was a trainee and not an employee
- The CCMA had no jurisdiction to hear a case brought by a non-employee
- In any case Ms Andreanis had not been dismissed as her appointment had expired automatically when her internship period expired.
The arbitrator found that:
- Ms Andreanis was an employee in terms of the definition in Section 213 of the LRA
- She also qualified as an employee in terms of all but one of the seven criteria in section 200A of the LRA
- Section 200A gave arbitrators no discretion at all to find that a person was not an employee if any one of the seven criteria in section 200A applied. (This is a puzzling finding as section 200A clearly leaves room for discretion via its proviso “Unless the contrary is proved…”)
- The Department of Health had been attempting to hide behind Ms Andreanis’s internship
- The dismissal was unfair
- The employer was to reinstate the employee with full back pay.
Employers are advised, in the light of the above to ensure that all trainees are treated fairly and to contact a reputable labour law expert should they be unsure whether a worker falls under the protection of the labour law or not.
BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com. Go to: www.labourlawadvice.co.za
To buy our E-book WALKING THE NEW LABOUR LAW TIGHTROPE please contact Ivan via firstname.lastname@example.org or 011-8887944 .