Page 1 of 3 123 LastLast
Results 1 to 10 of 27

Thread: Rights as an employee

  1. #1
    New Member
    Join Date
    Jul 2016
    Location
    Johannesburg
    Posts
    1
    Thanks
    1
    Thanked 0 Times in 0 Posts

    Rights as an employee

    Hi

    I would like advice on where to proceed. I became a permanent employee at a company in March 2015. It is a company that operates from the owner's residential premises. When he started to build on his property questions were raised as to how large his business was and the council came to inspect his premises. He was told that he was only allowed 2 employees on the premises as he is operating in a residential area (he had 3 employees). This debacle went on for a while and in February 2016 they were clamping down on his business having 3 employees. He then approached me and requested that I become an "independent consultant" to his business but still work in a full time capacity. Essentially that rendered me self employed although he gave me his word that it was only the structure of my income that was going to change and I would still keep the full time employee benefits such as leave. I never signed a resignation letter nor did I receive a new contract indicating the change. I had to give him two invoices reflecting different amounts every month for his safety.

    Mid April 2016, my employer indicated that his company was struggling and he attempted to find me alternate employment. However this did not work. He then found my colleague work and indicated that she would be going to a new employer as of 1 July 2016. He then indicated to me that I would only receive half of my salary for July 2016 and following that there was uncertainty of any income. He indicated that he was going to change the structure of my pay and that I would receive payment per report. What he proposed was less than half my salary. I did not receive any contract again to indicate the change. Then on 30 June 2016 he told me that he was going to possibly get more income and that he will give me my full salary again for the month of July 2016 and after that he could not guarantee anything. I told him that I do not agree to this and that we should stick to our arrangement of pay per report in order for me source additional work. He was not happy with this as he was aware that he could potentially pay me more than my salary with the amount of work that he "might" get. Things are still uncertain and I am afraid that he might not pay me this month as he indicated to me "if you want to play that game" and went on to say that he might pay me as his clients pay him which would be intermittent as it is legal work and settlements can take years.

    I appreciate any advice in this regard. What are my rights here?

  2. #2
    Diamond Member HR Solutions's Avatar
    Join Date
    Mar 2013
    Location
    Capetown/Jhb
    Posts
    3,329
    Thanks
    113
    Thanked 214 Times in 202 Posts
    Clearly he is battling and can't pay you. It seems things have gone a bit sour - best to move on because it doesn't sound like it is going to get better. You can't get something (money) out of someone if they haven't got it. You are an "independent consultant" which probably means that if he doesn't need you he can stop your services with immediate effect.
    HR Solutions - Recruitment Specialists - Johannesburg & Capetown Tel: 0861-045-263
    Upload your CV @ www.2hrs.co.za

    Biometric Fingerprint Criminal Checks (AFIS)

  3. #3
    Silver Member Greig Whitton's Avatar
    Join Date
    Mar 2014
    Location
    Cape Town
    Posts
    316
    Thanks
    32
    Thanked 99 Times in 81 Posts
    Quote Originally Posted by HR Solutions View Post
    Clearly he is battling and can't pay you.
    I don't think that is clear at all. At best, it's clear that OP's employer claims that he is battling. Either way, it doesn't dissolve OP's employer of their legal obligations (i.e. to pay OP as contracted).

    Quote Originally Posted by HR Solutions View Post
    You can't get something (money) out of someone if they haven't got it.
    OP's employer owns property and was preparing to expand on it. He has also offered / promised to renew OP's full salary.

    Quote Originally Posted by HR Solutions View Post
    You are an "independent consultant" which probably means that if he doesn't need you he can stop your services with immediate effect.
    Nothing posted by OP proves that he is an independent consultant. Just because an employer and an employee agree to an independent contractor arrangement doesn't mean that it is such legally. Even if OP signed an independent contractor agreement, he might still legally be deemed to be an employee (e.g. if he derives most of his income from a single employer or is subject to their control). As I see it, OP is still legally employed and fully entitled to enforce that contract.

    It sounds to me like OP's employer is being exploitative. OP has to choose between enabling this exploitation by acquiescing to his employer's ever-shifting rules or enforcing his rights (e.g. approaching the CCMA) and accepting that doing so will almost certainly sound the death knell for this particular job.

    Founder of Evergrow - Helping South African business owners grow their business without the growing pains

  4. Thanks given for this post:

    Nixi (12-Jul-16)

  5. #4
    Diamond Member HR Solutions's Avatar
    Join Date
    Mar 2013
    Location
    Capetown/Jhb
    Posts
    3,329
    Thanks
    113
    Thanked 214 Times in 202 Posts
    Oh really .......... ? Ok then let's say that lol
    Maybe you should read it again and sometimes just realize that companies go thro difficult times and sometimes battle to pay employees or independent consultants which is exactly what this person is .........by his own admission.
    HR Solutions - Recruitment Specialists - Johannesburg & Capetown Tel: 0861-045-263
    Upload your CV @ www.2hrs.co.za

    Biometric Fingerprint Criminal Checks (AFIS)

  6. #5
    Silver Member Greig Whitton's Avatar
    Join Date
    Mar 2014
    Location
    Cape Town
    Posts
    316
    Thanks
    32
    Thanked 99 Times in 81 Posts
    Quote Originally Posted by HR Solutions View Post
    Maybe you should read it again and sometimes just realize that companies go thro difficult times and sometimes battle to pay employees
    I'm not unsympathetic to the challenges of running a business, but that's not OP's problem. He has a legal right to be paid.

    Quote Originally Posted by HR Solutions View Post
    or independent consultants which is exactly what this person is .........by his own admission.
    His admission has no bearing on whether he is legally deemed to be an employee or not. Claiming to be an independent consultant does not make it so.

    And just to clarify, OP can't have his cake and eat it. If the "independent contractor" agreement is unenforceable (by virtue of OP being legally considered an employee), then OP has no claim to the benefits associated with that agreement (i.e. payment per report). OP must either:

    1. Settle for his original employment contract;
    2. Negotiate a new employment contract (e.g. with a base salary + additional payments for reports completed); OR
    3. Resign and attempt to earn a living as a genuine independent contractor.

    Founder of Evergrow - Helping South African business owners grow their business without the growing pains

  7. #6
    Diamond Member HR Solutions's Avatar
    Join Date
    Mar 2013
    Location
    Capetown/Jhb
    Posts
    3,329
    Thanks
    113
    Thanked 214 Times in 202 Posts
    Now u contradicting yourself.
    HR Solutions - Recruitment Specialists - Johannesburg & Capetown Tel: 0861-045-263
    Upload your CV @ www.2hrs.co.za

    Biometric Fingerprint Criminal Checks (AFIS)

  8. #7
    Silver Member Greig Whitton's Avatar
    Join Date
    Mar 2014
    Location
    Cape Town
    Posts
    316
    Thanks
    32
    Thanked 99 Times in 81 Posts
    Where have I contradicted myself?

    Founder of Evergrow - Helping South African business owners grow their business without the growing pains

  9. #8
    Diamond Member HR Solutions's Avatar
    Join Date
    Mar 2013
    Location
    Capetown/Jhb
    Posts
    3,329
    Thanks
    113
    Thanked 214 Times in 202 Posts
    He then approached me and requested that I become an "independent consultant" to his business but still work in a full time capacity
    Discussed and agreed by both parties. No contract needed. An independent consultant can work for many people and invoice accordingly.

    Mid April 2016, my employer indicated that his company was struggling and he attempted to find me alternate employment. However this did not work. He then found my colleague work and indicated that she would be going to a new employer as of 1 July 2016
    A clear indication that business is not doing well and showing goodwill in finding the employee new employment.


    Sometimes in the real world you have to be able to read the signs of a company that is battling. You do not see that and want to always enforce and find a law to make a company "pay". It is not clever to advise an employee to pursue a battle that they will not possibly win.
    This guy has been upfront for a couple of months. and has advised accordingly. What exactly more would you like him or would like to force him to do if he does not genuinely have the money.


    His admission has no bearing on whether he is legally deemed to be an employee or not. Claiming to be an independent consultant does not make it so.
    His admission has got everything to do with it, especially after they have chatted about it. You would be surprised to know how many people out there are "Independent Contractors" ........

    Resign and attempt to earn a living as a genuine independent contractor.
    Resign from what ? He IS an independent contractor as per his admission - do you not understand this ?
    HR Solutions - Recruitment Specialists - Johannesburg & Capetown Tel: 0861-045-263
    Upload your CV @ www.2hrs.co.za

    Biometric Fingerprint Criminal Checks (AFIS)

  10. #9
    Silver Member Greig Whitton's Avatar
    Join Date
    Mar 2014
    Location
    Cape Town
    Posts
    316
    Thanks
    32
    Thanked 99 Times in 81 Posts
    Quote Originally Posted by Nixi View Post
    He then approached me and requested that I become an "independent consultant" to his business but still work in a full time capacity.
    Quote Originally Posted by HR Solutions View Post
    Discussed and agreed by both parties. No contract needed. An independent consultant can work for many people and invoice accordingly.
    Discussing and agreeing to an independent contractor arrangement does not mean that someone is legally deemed to be an independent contractor. SARS published an interpretation note specifically addressing this issue several years ago. That interpretation note sets out the tests that need to be applied when determining whether someone is an independent contractor or an employee. Here's a Fin24 article that provides an accessible summary.

    When those tests are applied to OP's description, it appears almost certain that he is an employee and not an independent contractor regardless of what he and his employer may have discussed / agreed.

    Quote Originally Posted by Nixi View Post
    Mid April 2016, my employer indicated that his company was struggling and he attempted to find me alternate employment. However this did not work. He then found my colleague work and indicated that she would be going to a new employer as of 1 July 2016.
    Quote Originally Posted by HR Solutions View Post
    A clear indication that business is not doing well and showing goodwill in finding the employee new employment.
    Or maybe the employer had an ulterior motive for getting rid of that particular employee and alleged business distress to that end. Either way, the employer has a legal obligation to pay OP and OP has a right to be paid.

    Quote Originally Posted by HR Solutions View Post
    Sometimes in the real world you have to be able to read the signs of a company that is battling.
    I agree 100%. But this applies just as much (if not more so) to business owners as it does to their employees. Unfortunately, many owners don't read the signs and manage their business proactively. Instead, they take reactive measures and blame their woes on the economy / government / God.

    Quote Originally Posted by HR Solutions View Post
    You do not see that and want to always enforce and find a law to make a company "pay". It is not clever to advise an employee to pursue a battle that they will not possibly win.
    So instead of enforcing his legal rights OP should just take his employer at his word and be paid whatever his employer claims is affordable?

    I'm not advising OP to "pursue a battle". OP created this thread with the specific intent of clarifying his rights and I have responded accordingly. Personally, if I were OP, I would approach my employer and suggest that the back-and-forth agreements have produced a confusing state of affairs. I would then propose clarifying and (where necessary) re-negotiating the working arrangement from a clean slate. Specifically:

    (1) Does the employer want an employee or an independent contractor?
    (2) Does the employer want to pay a fixed monthly amount or per project?

    If the negotiations break down, OP can propose independent arbitration. Legal action and "pursuing a battle" ought to be a last resort.

    Quote Originally Posted by HR Solutions View Post
    What exactly more would you like him or would like to force him to do if he does not genuinely have the money.
    According to OP, his employer is capable of paying him as agreed:

    Quote Originally Posted by Nixi View Post
    Then on 30 June 2016 he told me that he was going to possibly get more income and that he will give me my full salary again for the month of July 2016 and after that he could not guarantee anything. I told him that I do not agree to this and that we should stick to our arrangement of pay per report in order for me source additional work. He was not happy with this as he was aware that he could potentially pay me more than my salary with the amount of work that he "might" get.
    Sounds to me like OP's employer wants the best of both worlds: to pay OP on a project basis but not pay OP more than his original salary. This is unfair to OP. His employer must either abide by the original employment contract or fully commit to the pay-per-project agreement.

    And if the employer is genuinely cash-strapped, there are alternative measures that he can take (e.g. applying to the Training Layoff Scheme for payroll relief).

    Founder of Evergrow - Helping South African business owners grow their business without the growing pains

  11. #10
    Diamond Member HR Solutions's Avatar
    Join Date
    Mar 2013
    Location
    Capetown/Jhb
    Posts
    3,329
    Thanks
    113
    Thanked 214 Times in 202 Posts
    I find it funny how you try to "complicate" a simple thing and end up arguing for both sides and don't achieve anything at the end of the day.
    HR Solutions - Recruitment Specialists - Johannesburg & Capetown Tel: 0861-045-263
    Upload your CV @ www.2hrs.co.za

    Biometric Fingerprint Criminal Checks (AFIS)

Page 1 of 3 123 LastLast

Similar Threads

  1. [Question] IOD rights
    By gordock in forum Labour Relations and Legislation Forum
    Replies: 3
    Last Post: 14-Sep-12, 07:11 PM
  2. [Question] What are my rights?
    By Perform Computers in forum General Business Forum
    Replies: 0
    Last Post: 06-Mar-12, 05:13 PM

Did you like this article? Share it with your favourite social network.

Did you like this article? Share it with your favourite social network.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •