LABOUR LAW
SUMMARY
NOTES &
QUESTIONS.
, LABOUR LAW
STUDY UNIT 1
THE PROTECTION OF THE EMPLOYEE AND THE EFFECT OF COMMON LAW ON
THE CONTRACT OF EMPLOYMENT
Study:
chapters 2 and 3 of t/book
definition of “employee” in sections 200A and 213 of LRA and section 1 of the BCEA
Note – only employees are protected by labour legislation (therefore important to draw a distinction between
employees and other workers, for eg. independent contractors). Furthermore, only when a relationship is
labelled an employment relationship does it fall under the protective scope of labour laws.
The employment relationship in SA is regulated by the following three main sources:
the Constitution
labour legislation
law of contract (which is regulated by common law)
1. EXCLUSIVE PROTECTION FOR EMPLOYEES IN TERMS OF LEGISLATION
1.1. An employee and an independent contractor
(paragraphs 1 & 2, chapter 2 of t/book)
Labour laws are protective by nature – (picture employment law as an umbrella – only people standing under
the umbrella are protected against the rain. People not under the umbrella will either get wet and cold or
have to find another or different umbrella to provide protection).
Iow – if a person is an employee – he/she is protected by labour law. People not covered by labour
laws will NOT be protected and will have to find other laws to protect themselves.
Primary aim of the Labour Relations Act, 1995 (LRA) – to promote sound relations between employers
and employees in the workplace (section 1).
Workers who are not employees fall outside the scope of the LRA and are, amongst others, not
entitled to protection against unfair dismissal.
For this reason – is NB to distinguish between employees and other workers who do not qualify as
employees, so-called “independent contractors”.
Labour Law – Joanne Study Notes Page 1
,It is sometimes difficult to distinguish between an employee and an independent contractor because they
closely resemble each other:
(1) an independent contractor is contracted to perform a specified task or to produce a specific result;
(2) an employee is appointed to render personal services ito a job description.
Eg of this close resemblance:
X appoints Z as a handyman to do specific tasks (for eg fixing the gutters and the roof of a house). X’s
gardener S is also asked to fix things around the house. Although Z and S are doing similar jobs, Z will be
an independent contractor and S will be an employee.
The LRA, Basic Conditions of Employment Act, 1997 (BCEA), the Employment Equity Act, 1998 (EEA) and
the Skills Development Act, 1998 (SDA) all use the same definition of “employee”.
Section 213 of the LRA defines “employee” as follows:
Part (a) of the definition Part (b) of the definition
“any person, excluding an independent contractor, “any other person who in any manner assists in
who works for another person or for the State and carrying on or conducting the business of an
who receives, or is entitled to receive, any employer…”
remuneration;”
This part of the definition indicates the following: Although this part of the definiton seems to widen the
it includes both employees in the private sector scope of part (a) of the definiton, it should still be
(‘who work for another person’) and in the public interpreted in the context of the tests developed by
sector (‘or for the State’); the courts to determine whether someone is an
it includes domestic and farm workers as employee or not.
employees;
it incorporates the common-law contract of Independent contractors would, therefore, still be
service (the location conductio operarum in excluded from the definition of employee.
common law) and excludes the contract of work
(the location conductio operis in common law),
which relates to an independent contractor.
NB – there are certain categories of employees which can more easily be confused with independent
contractors.
Eg: temporary employees, casual workers, contract workers, part-time employees, seasonal
employees or those working from home.
The difficulty of determining who qualifies as an employee and who does not, has prompted the court to
formulate various tests to distinguish between employee and independent contractors.
Labour Law – Joanne Study Notes Page 2
, The courts have given guidelines to distinguish between employees and independent contractors and
have developed three tests in this regard. These are:
the control test;
the organisation test; and
the dominant impression test.
Control test Organisation test Dominant impression test
Looks at the control the employer Looks at whether the person is This test is favoured by the courts
has over the work the person part and parcel of the business or and considers the employment
does, the manner in which the organisation of the employer. The relationship as a whole, rather
work must be done, and when person’s work must be integrated than concentrating on only one
and where the work must be into the business of the employer factor.
done. and must not just be an accessory
to the business.
These tests helped to distinguish between an employee from an independent contractor, but were not
sufficiently clear to solve the problem.
Meant that an employee who sought a remedy ito labour legislation could only access the
remedy once he/she could cross the hurdle of proving an employment relationship.
This burden of proof, placed on the employee, meant that access to the “umbrella” of protection
of labour law was not easy.
As a result – the LRA and BCEA were amended in 2002 to include a rebuttable presumption as to whom
would be regarded as an employee.
The presumption implies that, as soon as one of the factors listed in section 200A of the LRA
or section 83A of the BCEA, is found to exist in the relationship between the two parties, that
relationship is presumed to be an employment relationship.
The other party then has the opportunity to show, on a balance of probabilities, that no
employment relationship exists.
Section 200A of the LRA reads as follows:
“Until the contrary is proved, for the purposes of this Act…, a person who works for, or renders services to,
any other person is presumed, regardless of the form of the contract, to be an employee, if any one or more
of the following factors are present:
(a) the manner in which the person works is subject to the control or direction of another person;
(b) the person’s hours of work are subject to the control or direction of another person;
(c) in the case of a person who works for an organisation, the person forms part of that organisation;
(d) the person has worked for that other person for an average of at least 40 hours per month over the last
three months;
(e) the person is economically dependent on the other person for who she/he works or renders services;
(f) the person is provided with tools of trade or work equipment by the other person;
Labour Law – Joanne Study Notes Page 3
