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LLW2602 EXAM STUDY NOTES 2022
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LLW2602 ASSIGNMENT 1 SEMESTER 1 OF 2022 [882152]
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Exam (elaborations) BA Applied Psychology Labour Law Rules!, ISBN: 9781920025885
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LLW2601 - Individual Labour LawThe employee
The employment relationship in SA is regulated by the following 3 main sources:
1. The constitution
2. Labour legislation
3. The law of contract, regulated by common law
Only employees are protected by labour legislation. Workers who are not employees fall outside the scope of the
Labour Relations Act and are, amongst others, not entitled to protection against unfair dismissal.
Independent contractors are not considered employees.
Difference between and independent contractor and an employee:
1. Independent contractor: Contracted to perform a specified task or to produce a specific result
2. Employee: Appointed to render personal services in terms of a job description
Example:
X appoints Z as a handyman to do specific tasks (eg. fixing 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 e an independent
contractor and S will be an employee.
Definition of an employee:
Part a; Any person, excluding an independent contractor, who works for another person or for the state and
who receives, or is entitled to receive any remuneration
Part b; Any person, who in any manner assists in carrying on or conducting the business of an employer.
3 guidelines to distinguishing between employees and independent contractors:
Control Test Organisation test Dominant impression test
Looks at control the employer has Looks at whether the person is Favoured by the courts. Looks
over the work the person does, part & parcel of the employer’s at employment relationship as
manner in which it must be done, business. Person’s work must be a whole, rather than
when and where it must be done. integrated into, and not just be an concentrating on just one
Included in test for Sec 200a and accessory to business. factor.
83a: Included in test for Sec 200a and
• even if the above (what 83a: Included in test for Sec 200a
work, working hours, • person does not need to and 83a:
manner) is not specified, work at other person’s • Confirms no single
does not mean premises to prove decisive factor for
employment does not employment exists. employment. All
exist. • Tools provided may vary, factors to be
from cell phone package considered.
to set of screw drivers.
These tests helped in distinguishing an employee from an independent contractor, but were not clear to
solve the problem, as an employee seeking protection would first need to prove the existence of an
employment relationship first. i.e. access to protection was not easy.
,Due to this, the BCEA was amended (Section 200A/Section 83A). As soon as one of the factors listed below is
found to exist in the relationship between parties, its presumed an employment relationship exists. Other
party would then need to prove otherwise, based on a balance of probabilities.
Factors are:
1. Manner in which one works, is controlled by another.
2. Person’s hours of work are controlled by another.
3. Person forms part of the organisation
4. Person has worked for an average of at least 40 hours’ p/m over last 3 months
5. Person is economically dependent on person he works for
6. Person is provided with tools/work equipment by other person
7. Person only works for one person.
These factors should be looked at, along with the tests. See above table.
The following table can be used to assist in determining if employment relationship exists. It shows the
difference between employee and independent contractor:
Employee Independent Contractor
To render personal services To perform specified work, or specified
result
Must perform services personally May perform through others
Employer may choose when to make use of Contractor must perform work within fixed
services of employee period of contract
Contract terminates on death of employee Contract does not necessarily terminate on
death of contractor
Contract terminates on expiry of period of Contract terminates on completion of work
service in contract
In Wyeth SA (Pty) Ltd vs Manqele, court held that people who have signed employment contracts, but have
not started work, are employees for the purpose of the LRA.
Non-standard employees
To increase protection of vulnerable workers and to promote decent work. The act attempts to clarify
confusion about atypical employees.
3 Categories of non-standard employees:
1. Temporary employment services (TES)
WHO? Any person who, for reward, provides to a client other persons who perform work/services for the
client and are remunerated by TES
WHEN WILL IT BE ALLOWED? Employer may make use of TES broker. They may appoint temp employee for
limited or unlimited time, as long as they comply with following restrictions:
Limited duration Unlimited duration
Employee is provided for client: Employee is supplied for any amount of
• For 3 months, or time, but on a temp service basis.
• As substitute for an employee who This will be determined by relevant
is temporarily absent bargaining council.
*Employees who earn more than BCEA threshold are excluded from these restrictions. (R205 433)
, WHAT WILL HAPPEN WITH LRA IF THERE IS NON-COMPLIANCE?
For example, if worker is not really performing temp work, they will be considered a permanent employee
and no longer work for TES broker.
2. Fixed-term employees
WHO? Relationship exists between just employer and employee. Contract is concluded between them, and
will terminate at a set stage.
Contract terminates on/at:
• Occurrence of specified event
• Completion of specified task/project
• Fixed date (Other than employees retirement)
Following are excluded from restrictions of fixed-term employees:
• Workers earning more than BCEA threshold (R205 433/year)
• Employer employs fewer than 10 workers
• Employer who employs less than 50 people, and business has been in operation for less than 2 years.
• Employee employed in terms of a fixed-term contract permitted by any statute, sectoral
determination or collective agreement.
WHEN WILL IT BE ALLOWED? If employee is appointed for under 3 months. Employer may employ for more
than 3 months only if:
• Nature of work is of limited or definite duration
• Employer can give justifiable reason for fixing term of contract. This will be where such employee:
- Is replacing another employee who’s temporarily absent
- Is employed on a temporary increase in work, but will not endure beyond 12 months.
- Is a student, or recent graduate, working for work experience/training.
- Is employed to work on a specific project
- Is non-citizen and has permit for fixed time
- Is employed for seasonal work
- Is employed for official public works
- Has reached retirement.
If required, employer will need to prove justifiable reason for fixing contract, and that was agreed upon by
both parties.
If employed for longer than 3 months, worker must be treated same as other employees working there,
except for justifiable reason, eg. Seniority, length of service,etc.
If employed for more than 24 months, worker entitiled to severance pay when contract is terminated.
Employers to give these workers equal access to available vacancies.
If employer wants to renew/extend fixed-term contract – must be done in writing.
WHAT WILL HAPPEN WITH LRA IF THERE IS NON-COMPLIANCE?
Fixed-term contract worker will be considered permanent worker
3. Part-time employees
WHO: Remunerated wholly or partly with reference to their working hours.
They work less than comparable full time employee.
Typically, a domestic, casual or piece worker.
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