Chapter 3: The Employee
Areas of Focus:
Definition of employee as a precondition for application of labour legislation.
Different types of employees.
Difference between employees and independent contractors.
Different ways labour legislation applies to employees.
Introduction:
Existence of a contract of employment -> one is thus an employee
•
◦ This is the importance of the role of the employment contract as it guarantees
protection with labour legislation.
• Although legislation provides the definition for who is an employee in terms of an
employment contract, the definitions may be elusive for three reasons:
1. It is often difficult to distinguish between employees and independent contractors as
both perform work in exchange for payment.
2. Work is not often performed by employees working in terms of what is still regarded as
the standard for of employment
a. The permanent employee working until retirement
b. Also considering the phenomenon of labour broking or temporary employment
services.
3. While all employees, in principle, have access to the rights contained in legislation, they
do not enjoy the same protection in the application of these rights.
• There are many different types of employees -> such as permanent, fixed term or
temporary, casual, senior vs junior
◦ But for purposes of legislation this differentiation is not so important as an employee
remains just that, regardless of titles
◦ But consider that not all employees are protected to the same extent.
◦ There are few exclusions such as Uniform members of the Defence Force and the
Spikes.
• Issues -> exclusions that are total or partial
◦ Exclusions of independent contractor for legislative purposes
◦ Judicial inclusions or exclusions
◦ Special protection in case of atypical employment and other kinds of vulnerable
employees such as employees of labour brokers
◦ Determining who an employer is.
, ▪ Temporary employment services -> such as nursing or mining industries
• A company, temporary employment serves with nurses on the books for those
services
• But the purpose of the company is to provide other companies with the services
of nurses in exchange for rewards
• Default position of such a nurse is as of an employee of the labour broker
• The issue comes from the client company not being the one to pay, and the
client decides to unfairly terminate the job
• The real employment relationship is where the nurse works
• Temporary employment services have independent contractor contracts which
have provision for automatic termination
▪ Use of independent contract -> use to evade responsibility
• These contracts don't bear the same as those of employees, leaving these
contractors vulnerable.
▪ Fixed term employee -> this contract stipulates the limited duration of contract
• With reference to specific period of time, completion of a contract or the
occurrence of a future, specified event
• Abused by both employee and employer
• By employer, if there is a fixed term contract, there is a pre-agreement that that
contract will terminate automatically which means that there is no dismissal or
termination of employment, use of this eliminates the risk of unfair dismissal
• Employees may have a permanent job but appoint people on a fixed term
contract against the permanent contract to avoid unfair dismissal suits.
▪ Part-time employee -> idea is that a certain proportion of hours worked by full time
employees are worked
• These employees may be denied the benefits given to permanent employees
• Majority of part time employees are women, the reason being that women are
still the primary caregivers in society, difficult to successfully integrate work and
child care, women will go in and out of the labour market, finding themselves in
precarious employment.
Consider -> a definition of employee, distinguish between employee and independent
contractor, categories of employees and atypical forms of employment as well as the relevant
legislative amendment promulgated to protect vulnerable employees in atypical forms of
employment.
Definition of Employee
Section 213 of the Labour Relations Act:
•
◦ (a) any person excluding an independent contractor, who works for another or for the
State and who receives, or is entitled to receive, any remuneration, and;
◦ (b) any other person who in any manner assists in conducting business of the
employer.
2
Areas of Focus:
Definition of employee as a precondition for application of labour legislation.
Different types of employees.
Difference between employees and independent contractors.
Different ways labour legislation applies to employees.
Introduction:
Existence of a contract of employment -> one is thus an employee
•
◦ This is the importance of the role of the employment contract as it guarantees
protection with labour legislation.
• Although legislation provides the definition for who is an employee in terms of an
employment contract, the definitions may be elusive for three reasons:
1. It is often difficult to distinguish between employees and independent contractors as
both perform work in exchange for payment.
2. Work is not often performed by employees working in terms of what is still regarded as
the standard for of employment
a. The permanent employee working until retirement
b. Also considering the phenomenon of labour broking or temporary employment
services.
3. While all employees, in principle, have access to the rights contained in legislation, they
do not enjoy the same protection in the application of these rights.
• There are many different types of employees -> such as permanent, fixed term or
temporary, casual, senior vs junior
◦ But for purposes of legislation this differentiation is not so important as an employee
remains just that, regardless of titles
◦ But consider that not all employees are protected to the same extent.
◦ There are few exclusions such as Uniform members of the Defence Force and the
Spikes.
• Issues -> exclusions that are total or partial
◦ Exclusions of independent contractor for legislative purposes
◦ Judicial inclusions or exclusions
◦ Special protection in case of atypical employment and other kinds of vulnerable
employees such as employees of labour brokers
◦ Determining who an employer is.
, ▪ Temporary employment services -> such as nursing or mining industries
• A company, temporary employment serves with nurses on the books for those
services
• But the purpose of the company is to provide other companies with the services
of nurses in exchange for rewards
• Default position of such a nurse is as of an employee of the labour broker
• The issue comes from the client company not being the one to pay, and the
client decides to unfairly terminate the job
• The real employment relationship is where the nurse works
• Temporary employment services have independent contractor contracts which
have provision for automatic termination
▪ Use of independent contract -> use to evade responsibility
• These contracts don't bear the same as those of employees, leaving these
contractors vulnerable.
▪ Fixed term employee -> this contract stipulates the limited duration of contract
• With reference to specific period of time, completion of a contract or the
occurrence of a future, specified event
• Abused by both employee and employer
• By employer, if there is a fixed term contract, there is a pre-agreement that that
contract will terminate automatically which means that there is no dismissal or
termination of employment, use of this eliminates the risk of unfair dismissal
• Employees may have a permanent job but appoint people on a fixed term
contract against the permanent contract to avoid unfair dismissal suits.
▪ Part-time employee -> idea is that a certain proportion of hours worked by full time
employees are worked
• These employees may be denied the benefits given to permanent employees
• Majority of part time employees are women, the reason being that women are
still the primary caregivers in society, difficult to successfully integrate work and
child care, women will go in and out of the labour market, finding themselves in
precarious employment.
Consider -> a definition of employee, distinguish between employee and independent
contractor, categories of employees and atypical forms of employment as well as the relevant
legislative amendment promulgated to protect vulnerable employees in atypical forms of
employment.
Definition of Employee
Section 213 of the Labour Relations Act:
•
◦ (a) any person excluding an independent contractor, who works for another or for the
State and who receives, or is entitled to receive, any remuneration, and;
◦ (b) any other person who in any manner assists in conducting business of the
employer.
2
