What are the two defining aspects of an employee?
- Someone who works for someone else and remunerated.
- Anyone who assists in carrying on or conducting the business of the employer.
What 3 tests could be used to determine whether someone is an employee?
- Control tests
- Organisation test
- Dominant impression test
what is looked at in the control test?
Someone is an employee if employer exercises control over them.
What is looked at in the organisation test?
Implies worker must be part of same organisation as employer.
What 3 aspects does the dominant impression test look at?
- Control over employee.
- Degree of integration of employee into the employer’s business.
- Measure of employees economic dependance on employer.
Who is the onus on with regards to proving someone is not an employee?
the employer, if they can’t prove person is not their employee, that person will be regarded as their employee.
Name 4 things that BCEA and LRA list with regards to presumption someone is an employee.
- Whether the manner in which the person works is subject to the control or direction of another person.
- Whether the person’s hours of work are subject to the control or direction of another person.
- In the case of a person who works for an organisation, whether the person forms part of that organisation.
- Whether the person has worked for the other person for an average of at least 40 hours per month over the last three months.
- Whether that person is economically dependent on the person for whom he or she works or provides services.
- Whether the person is provided with his or her tools of trade or work equipment by another person.
- Whether the person only works or supplies services to one person.
What amount would you need to earn to not be protected under certain LRA and BCEA legislation?
R261 478.45 per year
What 3 additional categories of the workforce was the LRA amended for?
- Fixed-term employees.
- Part-time employees.
- Temporary employment employees.
What is a fixed-term employee?
They are employed until completition of particular project or until occurrence of a future specified event.
When would a fixed term employment relationship be deemed a dismissal?
When employee has reasonable expectation that their contract will be renewed or retained on a permanent basis and that does not occur.
How long can someone be employed under a fixed term contract?
No longer than 3 months unless appointed for specific duration or there is another justifiable reason.
What happens when a fixed term contract for a specific project going longer than 24 months is concluded?
Employer must pay employee on expiry of the contract remuneration of one week’s pay for every completed year of service.
In which 3 scenarios for fixed term employment would the LRA not apply?
- When employee earns more than prescribed threshold.
- When employer has less than 10 employees / or less than 50 and business has only been operational less than 2 years.
- Where fixed-term contract is legal in terms of statute, collective agreement or sectoral determination.
What is a part time employee?
Work for one employer but remunerated on basis of hours worked.
Which part time employees will not be protected by LRA? (4)
- When employee earns more than prescribed threshold.
- When employer has less than 10 employees / or less than 50 and business has only been operational less than 2 years.
- Employees who work less than 24 hours a month.
- All persons during first 3 months of continuous employment with employer.
What are temporary employment services?
Labour brokers who, for reward provide employees to a client or procure them for a client.
Under temporary employment, who is the employer of the employees?
Labour brokers.
What is temporary service defined as under its requirements. (3)
- Period exceeding 3 months.
- As replacement for an employee temporarily absent.
- in a work sector or for any period of time which is indicated as a temporary service in a collective agreement concluded in a bargaining council, a sectoral determination, or as determined by the Minister of Labour.
What will happen if the temporary service does meet its requirements?
Employee will no longer be considered employee of labour broker but rather of client of labour broker.
What are the duties of employees? (5)
- To tender their service.
- Employee must perform competently.
- Further employers’ interests not work against them.
- Must be respectful and obedient.
- Must refrain from misconduct.
Name 3 things included in contract of employment.
Job description, remuneration, duration, relocation, benefits, leave, contracts in restraint of trade, closed shop and egency agreements, disciplinary code, dispute resolution,.
What are the general requirements for a valid contract? (5)
- Parties must have reached consensus.
- Parties must have legal capacity.
- Must be possible to perform in accordance with contract.
- The agreement must be legal.
- Formal requirements must be met if any.
What would happen to contract if employee prevented from working due to factors not in their control?
Contract suspended until employee returns, and where applicable are entitled to paid sick leave.
