,ABR 410 (2020) Marissa Badenhorst
Page 2 of 190
,ABR 410 (2020) Marissa Badenhorst
FACTS APPLICABLE TO THE COURSE AS A WHOLE
The following set of facts integrate most aspects covered in the Study Units:
Temogo Fredericks (TF) is a coloured person who comes from a poor background. He lives in the
Western Cape. After matric he joined the Brick and Mortar Company (BMC) where he has worked for
the past 10 years in different capacities. TF completed a diploma in Project Management on a part-
time basis after hours. BMC employs 100 workers and two trade unions have recruited members at the
workplace.
During the first three years, TF worked as a brick layer and was only paid for the completion of each
building project. However, one year after commencement, BMC provided TF with a vehicle and he
became a supervisor of projects. Although TF attended staff meetings on each Friday of the week and
BMC’s disciplinary code applied to him, BMC always referred to him as an independent contractor
during the first three years. He was not entitled to paid leave and he did not report for work on fixed
hours.
At the beginning of year 4, BMC offered TF a fixed-term contract with the following terms: duration of
one year; remuneration of R200 000; hours of service – Monday to Friday 7:00 till 18:00 with 30 minutes
lunch break; paid leave (12 days paid vacation leave for the year and 5 days sick leave); 24 hour
notice of termination; restraint of trade limiting TF not to do similar work in the Western Cape region for
a duration of 3 years subsequent to termination. TF accepted the fixed term appointment.
During the 4th year of service TF used BMC’s vehicle to travel to friends during working hours. After
viewing a soccer game on TV and enjoying refreshments, TF drove into incoming traffic and crashed
into Mr Boxer (Mr B). TF was under the influence of alcohol and the accident caused R50 000 damages
to Mr B’s vehicle. Back at work, BMC issued TF with a written warning without investigating the matter.
TF feels aggrieved because he was not given the opportunity to state his case and there were previous
incidents of drunk driving and vehicle accidents that were not addressed by the employer.
TF was appointed on an indefinite contract of employment in year 5. In year 6 he applied for promotion
to Senior Head of Projects. Three candidates were shortlisted. Jack, a white male, had the highest
qualification (BSC Building degree), but shortest work experience. TF had the longest and most
appropriate work experience. Sipho Ndo (Mr S), an african person, had a matric and the second
longest work experience. The interview panel awarded TF with the highest score. However, Mr S was
promoted. TF asks reasons why he was not promoted and © 2020 University of Pretoria 12
BMC replied that they applied national demographics only and that they were underrepresented in
the category of african workers.
In year 7 TF joined trade union XYZ. They represented 40 of BMC’s 100 workers. The rival trade Union
ABC represented 51 of the 100 workers. TF was keen to become a trade union representative (shop
steward). Ms S, TF’s supervisor, did not like the idea of him being active in trade union activities and
fabricated a set of lies against TF. It was alleged that TF circulated racist and derogatory emails to
fellow employees.
TF was issued with 48 hours’ notice to attend a disciplinary enquiry. During the enquiry he was not
allowed the opportunity to appoint a legal representative to assist him in the proceedings. TF was
frustrated by the fact that BMC did not follow a formal and court-like procedure during the enquiry.
While awaiting the outcome of the enquiry, the aggrieved TF arranged a trade union meeting and
the members decided to call out a strike. A dispute was referred to the Building Industry Bargaining
Council and a certificate of non-resolution was issued. Upon receiving the certificate, all members of
the trade union XYZ withdrew their labour with immediate effect.
BMC is concerned that this may be an unprotected strike and issues a one hour ultimatum for the
workers to return to work. Having failed to adhere to the ultimatum, BMC dismisses the workers with
immediate effect.
The 40 dismissed workers are keen to refer the dispute to the appropriate dispute resolution institution.
TF approaches you for advice regarding a number of issues that he has with BMC.
Page 3 of 190
, ABR 410 (2020) Marissa Badenhorst
STUDY UNIT 3: IDENTIFYING THE
ELUSIVE EMPLOYEE
CHAPTER 4
Compulsory study material
1. Van Niekerk and Smit Law@work (2019) Chapter 4
2. State Information Technology Agency (Pty) Ltd v CCMA & Others (2008) 29 ILJ 2234 (LAC)
3. Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others
(2018) 39 ILJ 1911 (CC)
4. “Kylie” v CCMA 2010 BLLR 705 (LAC)
5. Discovery Health v CCMA & Others (2008) 7 BLLR 633 (LC)
6. Van Eck BPS and Nemusimbori E “Uber Drivers: Sad to Say, but no Employees in SA” (2018)
THRHR (Vol 3) 473- 483
7. Du Toit “Platform Work and Social Justice” (2019) ILJ 1-11
8. Global Commission on the Future of Work Work for a Brighter Future (2019) p 5 and
Executive Summary pp10-14
INTRODUCTION
• Traditionally labour statutes have always applied to persons defined as ‘employees’
o The courts often used the characteristics of the common-law contract of
employment in interpreting who is and who is not an employee
o However, in modern times it is difficult to distinguish between employment
relationships and modern forms of work like uber drivers
▪ The standard employee is no longer full-time, male and employed by
the same employer during normal working hours → new forms of workers
have emerged, such as the “e-lancer”, the “zero hour” contract worker
and those who participate in the platform economy, based at
home/on the road
▪ Atypical work, such as the triangular labour broker relationship (referred
to in the LRA as ‘temporary employment service’) and fixed-term and
part-time work has flourished and are mainly attributable to employers’
quest for flexible working arrangements
WHAT ARE THE TRADITIONAL COMMON-LAW TESTS TO DETERMINE IF A PERSON IS AN
EMPLOYEE?
ORIGINS OF THE DISCOURSE
• In Colonial Mutual Life Insurance v MacDonald the Appellate Division had to
consider whether an insurance agent was an employee
o The court held that the contract between master and servant is one of letting
and hiring of services (locatio conductio operarum) whereas the contract
between the principal and a contractor is the letting and hiring of some definite
piece of work (locatio conductio operis)
Page 4 of 190
Page 2 of 190
,ABR 410 (2020) Marissa Badenhorst
FACTS APPLICABLE TO THE COURSE AS A WHOLE
The following set of facts integrate most aspects covered in the Study Units:
Temogo Fredericks (TF) is a coloured person who comes from a poor background. He lives in the
Western Cape. After matric he joined the Brick and Mortar Company (BMC) where he has worked for
the past 10 years in different capacities. TF completed a diploma in Project Management on a part-
time basis after hours. BMC employs 100 workers and two trade unions have recruited members at the
workplace.
During the first three years, TF worked as a brick layer and was only paid for the completion of each
building project. However, one year after commencement, BMC provided TF with a vehicle and he
became a supervisor of projects. Although TF attended staff meetings on each Friday of the week and
BMC’s disciplinary code applied to him, BMC always referred to him as an independent contractor
during the first three years. He was not entitled to paid leave and he did not report for work on fixed
hours.
At the beginning of year 4, BMC offered TF a fixed-term contract with the following terms: duration of
one year; remuneration of R200 000; hours of service – Monday to Friday 7:00 till 18:00 with 30 minutes
lunch break; paid leave (12 days paid vacation leave for the year and 5 days sick leave); 24 hour
notice of termination; restraint of trade limiting TF not to do similar work in the Western Cape region for
a duration of 3 years subsequent to termination. TF accepted the fixed term appointment.
During the 4th year of service TF used BMC’s vehicle to travel to friends during working hours. After
viewing a soccer game on TV and enjoying refreshments, TF drove into incoming traffic and crashed
into Mr Boxer (Mr B). TF was under the influence of alcohol and the accident caused R50 000 damages
to Mr B’s vehicle. Back at work, BMC issued TF with a written warning without investigating the matter.
TF feels aggrieved because he was not given the opportunity to state his case and there were previous
incidents of drunk driving and vehicle accidents that were not addressed by the employer.
TF was appointed on an indefinite contract of employment in year 5. In year 6 he applied for promotion
to Senior Head of Projects. Three candidates were shortlisted. Jack, a white male, had the highest
qualification (BSC Building degree), but shortest work experience. TF had the longest and most
appropriate work experience. Sipho Ndo (Mr S), an african person, had a matric and the second
longest work experience. The interview panel awarded TF with the highest score. However, Mr S was
promoted. TF asks reasons why he was not promoted and © 2020 University of Pretoria 12
BMC replied that they applied national demographics only and that they were underrepresented in
the category of african workers.
In year 7 TF joined trade union XYZ. They represented 40 of BMC’s 100 workers. The rival trade Union
ABC represented 51 of the 100 workers. TF was keen to become a trade union representative (shop
steward). Ms S, TF’s supervisor, did not like the idea of him being active in trade union activities and
fabricated a set of lies against TF. It was alleged that TF circulated racist and derogatory emails to
fellow employees.
TF was issued with 48 hours’ notice to attend a disciplinary enquiry. During the enquiry he was not
allowed the opportunity to appoint a legal representative to assist him in the proceedings. TF was
frustrated by the fact that BMC did not follow a formal and court-like procedure during the enquiry.
While awaiting the outcome of the enquiry, the aggrieved TF arranged a trade union meeting and
the members decided to call out a strike. A dispute was referred to the Building Industry Bargaining
Council and a certificate of non-resolution was issued. Upon receiving the certificate, all members of
the trade union XYZ withdrew their labour with immediate effect.
BMC is concerned that this may be an unprotected strike and issues a one hour ultimatum for the
workers to return to work. Having failed to adhere to the ultimatum, BMC dismisses the workers with
immediate effect.
The 40 dismissed workers are keen to refer the dispute to the appropriate dispute resolution institution.
TF approaches you for advice regarding a number of issues that he has with BMC.
Page 3 of 190
, ABR 410 (2020) Marissa Badenhorst
STUDY UNIT 3: IDENTIFYING THE
ELUSIVE EMPLOYEE
CHAPTER 4
Compulsory study material
1. Van Niekerk and Smit Law@work (2019) Chapter 4
2. State Information Technology Agency (Pty) Ltd v CCMA & Others (2008) 29 ILJ 2234 (LAC)
3. Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others
(2018) 39 ILJ 1911 (CC)
4. “Kylie” v CCMA 2010 BLLR 705 (LAC)
5. Discovery Health v CCMA & Others (2008) 7 BLLR 633 (LC)
6. Van Eck BPS and Nemusimbori E “Uber Drivers: Sad to Say, but no Employees in SA” (2018)
THRHR (Vol 3) 473- 483
7. Du Toit “Platform Work and Social Justice” (2019) ILJ 1-11
8. Global Commission on the Future of Work Work for a Brighter Future (2019) p 5 and
Executive Summary pp10-14
INTRODUCTION
• Traditionally labour statutes have always applied to persons defined as ‘employees’
o The courts often used the characteristics of the common-law contract of
employment in interpreting who is and who is not an employee
o However, in modern times it is difficult to distinguish between employment
relationships and modern forms of work like uber drivers
▪ The standard employee is no longer full-time, male and employed by
the same employer during normal working hours → new forms of workers
have emerged, such as the “e-lancer”, the “zero hour” contract worker
and those who participate in the platform economy, based at
home/on the road
▪ Atypical work, such as the triangular labour broker relationship (referred
to in the LRA as ‘temporary employment service’) and fixed-term and
part-time work has flourished and are mainly attributable to employers’
quest for flexible working arrangements
WHAT ARE THE TRADITIONAL COMMON-LAW TESTS TO DETERMINE IF A PERSON IS AN
EMPLOYEE?
ORIGINS OF THE DISCOURSE
• In Colonial Mutual Life Insurance v MacDonald the Appellate Division had to
consider whether an insurance agent was an employee
o The court held that the contract between master and servant is one of letting
and hiring of services (locatio conductio operarum) whereas the contract
between the principal and a contractor is the letting and hiring of some definite
piece of work (locatio conductio operis)
Page 4 of 190
