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Thread: Labour Law Advice on contractor absenteeism

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    Labour Law Advice on contractor absenteeism

    Good day Forum Members.

    Some labour law advice would really be appreciated!

    In April we had a contractor start working on site at a client of ours.
    Towards the end of April the contractor did not pitch for work. At the time we had no means of getting hold of the contractor due to cellphone being unrepairable, turns out the contractor was ill, had tonsil’s taken out, however no notification was given. We had a meeting with the contractor, with client present. We made it clear that the contractor couldn’t do that again, management has to be notified.
    All goes well until May; again the contractor did not pitch up for work. Turns out the contractor had traveling issues but returned to work on the third day.
    Then July, the contractor did not pitch for work!
    The contractor worked over time and permission was given for a leave day (giving the contractor a long weekend), over and above that the contractor still took one and half days off without permission or notification. The assumption was that the overtime covered the extra time taken off…
    When it came to the timesheet, overtime was present, confirming the actuals with our client, they did not give permission or approve the overtime, we have also recently discovered that during the time the contractor was working overtime, the contractor was caught on camera drinking alcohol.
    Then August, again the contractor did not pitch up for work, no notification. Out of the blue we had received an email the contractor “I can no longer work on site due to personal issues” and “please pay me for the time I have worked” hmmmmm
    We had requested that the contractor please return to site to complete outstanding work/issues as the contract was due to end in six days time, as per the agreement and signed contract by the contractor.
    The contractor unfortunately did not return to site, nor email us back or call us. Only two days after the end of the contract the contractor emailed us requesting payment.

    What are my rights as an employer, the client will not approve the timesheet and I feel they have every right to. Unfortunately the relationship we had with our client has been damaged due to the contractor’s actions.

    Never once could we get hold of the contractor, even still today via phone because the contractor has never got a new phone.

    Do we ignore, do we email back (what do we say)…. We can’t afford to be silly or be angered in email communications.

    Any help in this matter would REALLY be appreciated!

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    Diamond Member AndyD's Avatar
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    I'm thinking that many of your questions can only be answered if the finer details of the contract between you and the contractor are known. Was the contractor working solely for your company? You refer to yourself as the employer but are you actually not the customer?

    I've seen this type of dispute many times and often it's a case of both parties having their own interpretation of the contract terms.
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    Site Caretaker Dave A's Avatar
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    I definitely think differentiating between an employee on a term contract and a contractor is important here.

    There are other requirements too, but one aspect of your OP gives a clue - the presentation of time sheets rather than an invoice as claim for payment due.

    Reading between the lines, are you a labour broker by any chance?
    The trouble with opportunity is it normally comes dressed up as work.

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    We do recruitment, however we had a request to assist our client with contractors instead of perm placements which we were more than happy to do. The contractors that were on site fell under our payroll which meant they were employed by us and outsourced to our client. Four out of the five contractors were great, no problems what so ever.

    In terms of the contract, we had a standard Contract of Employment in place, however when the client discovered that the contractor was drinking on site just before he quit really put the cherry on the cake.

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    Platinum Member sterne.law@gmail.com's Avatar
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    Firstly I think it is very clear that the person is not a genuine contractor but an employee under the guise of a contractor and you should cover these bases for the future.
    To the actual problem at hand -
    The Contractor(we shall use this term for now) has terminated the agreement when he sent the sms. You can take this as a resignation. Alternatively you can dismiss for dessertion.
    Even if a genuine contract outside of an employment context exists - it has been breached and repudiated by the contractor.

    On the money issue, strictly speaking you would have to pay and claim any damages in a civil suite. Normall practice is not to pay and deal with any issues that arise thereafter.
    Your biggets issue is to repair the damage done with the client I would think.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

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    You may have various solutions to your predicament. The problem is that I cannot give you any advice without reading and studying the actual agreement between you and your client, and the contract between you and the contractor. There is nothing "standard" about any contract, and the wording means everything. I would therefore suggest that you either consult with your own attorneys or that you contact me.

    Sorry for not being able to give you more concrete advice.

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    Thank you to everyone who had contributed, I have been advised by the client and the employee that the employee did not complete a timesheet for the time worked on site. Within the contract we have with the employee we mention that the timesheets have to be completed and signed off by the client and that unfortunately was not done.

    We got in contact with a really good advisor who has been extremely helpful in this matter.

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