Rights as an employee

[Greig Whitton]

We will continue to disagree on an interpretation. So be it. My opinion still stands for this guy.

Fine. Let's agree to disagree.

Your advice will cost him time & money not guaranteed to get back.

My advice is that OP approach his employer, clarify the desired working arrangement, propose independent arbitration if necessary, and only consider legal action as a last resort.

Are you seriously suggesting that is bad advice?

[HR Solutions]

My advice is that OP approach his employer, clarify the desired working arrangement, propose independent arbitration if necessary, and only consider legal action as a last resort.

The employer "clarified" it in Feb. And yes - arbitration and legal action as a last resort is going to cost money.

Are you seriously suggesting that is bad advice?

Greg please read properly. I said going to cost time and money, NOT bad advice.


Lets leave this now as you seem to have a knack of twisting words and interpreting them the way you want.

[Greig Whitton]

I think that the benefits of spending some time to clarify a muddy working relationship are self-evident. The only advice that wouldn't cost any time or money is doing nothing. The risks of following that advice ought to be self-evident as well.

And I'll ignore the irony of someone telling me to read properly while spelling my name incorrectly.

[Dave A]

The only red herring I see in this discussion is how SARS interprets the relationship. This is for tax purposes only and has no bearing on the "employee, deemed employee or independent contractor" status of the relationship per the LRA.

[Greig Whitton]

The only red herring I see in this discussion is how SARS interprets the relationship. This is for tax purposes only and has no bearing on the "employee, deemed employee or independent contractor" status of the relationship per the LRA.

I referenced SARS policy for two reasons:

(a) To refute the assertion that all that is needed to validate an independent contractor arrangement is for an employer and employee to agree to it (i.e. irrespective of what they might agree, SARS may still treat the "contractor" as an employee and the "client" as an employer).

(b) It can impact the working relationship (e.g. an employer might coerce or manipulate an employee into agreeing to an independent contractor arrangement to avoid paying employees' tax, which could precipitate or exacerbate any tension between the two parties later down the line if there is a tax dispute). (I have personally been in this situation and it was very stressful)

In the context of the LRA, you are correct: SARS policy has no direct bearing. Hence, why I referenced the Department of Labour's Code of Good Practice: Who Is An Employee. The DoL's publication clearly stipulates that only one of seven factors need to be satisfied to conclude that someone is an employee (and not an independent contractor). These include:

(a) “The person has worked for that other person for an average of at least 40 hours per month over the last three months".
(b) “The person is economically dependent on the other person for whom he or she works or renders services” .
(c) “The person only works for or renders services to one person”.

Based on what OP shared, it appears clear (to me anyway) that OP satisfies at least one of these (if not all three) and, therefore, is an employee and not an independent contractor.

This isn't the first time that the subject of independent contractors vs employees has been raised in these forums. Which is why I found HR Solution's position on the matter so puzzling.

[Dave A]

The DoL's publication clearly stipulates that only one of seven factors need to be satisfied to conclude that someone is an employee (and not an independent contractor). These include:

(a) “The person has worked for that other person for an average of at least 40 hours per month over the last three months".
(b) “The person is economically dependent on the other person for whom he or she works or renders services” .
(c) “The person only works for or renders services to one person”.

Based on what OP shared, it appears clear (to me anyway) that OP satisfies at least one of these (if not all three) and, therefore, is an employee and not an independent contractor.

This isn't the first time that the subject of independent contractors vs employees has been raised in these forums. Which is why I found HR Solution's position on the matter so puzzling.

So if an independent contractor, who has little work and can not find any work, and is available for doing work for you, and has crapy tools, and uses your tools to make the job, and because you tell what to do on your job, and does so for more than 3 months, and when you tell him you have no further work for him, takes you to the CCMA because according to the LRA is now your employee, since just one of the criteria set out makes it so.

Justloadit, this is a wonderful example of the dangers of even small manipulations in language.

There is an important difference between presume and conclude.

Where one of these conditions are present, there is a presumption of employment. The onus would now fall to the employer to show why this is not in fact the case. If the would-be employee was relying only on the fact that you allowed them to use your tools, a commissioner might well accept your argument and conclude that the person was an independent contractor.

Obviously the more points that are applicable, the bigger the challenge facing the "alleged employer" in presenting a valid counter-argument.

[Greig Whitton]

You make excellent points, Dave, and I stand corrected.

I think that OP's employer would have a hard time proving that an employment relationship does not exist, but I accept that it is possible. However, if OP's employer did challenge the presumption of employment, I don't think that it would be sufficient to simply assert that he and OP agreed to an independent arrangement.

[HR Solutions]

I think that your "thinking" what might or might not happen will not stand up in this case especially with an employer that is battling financially. And as Dave said it is interpretation that is the boggling point. What would be the point in trying to nail an employer that clearly cannot afford this employee ? Do u want to make is so difficult for him that he never recovers and therefore perhaps never provides employment again ? Not clever in SA today.

[Greig Whitton]

I think that your "thinking" what might or might not happen will not stand up in this case especially with an employer that is battling financially.

An employer's alleged financial difficulties have no bearing on the presumption of employment.

And, as I stated earlier, there are options available to employers in financial distress.

What would be the point in trying to nail an employer that clearly cannot afford this employee ? Do u want to make is so difficult for him that he never recovers and therefore perhaps never provides employment again ?

I have never once advocated this. In fact, I advised the exact opposite.

We clearly don't see eye-to-eye on this matter so let's leave it since we're only going to end up going around in circles and derailing this thread.

[Dave A]

I think that OP's employer would have a hard time proving that an employment relationship does not exist

Oh agreed

[HR Solutions]

I thought we had left if ..... But u started it again.

[Entropy Group]

This thread made interesting reading. I agree that sometimes we over complicate relatively simple issues, and I thought Greig nailed it on page one. The discussion that followed was very informative and one could learn lots from these academic opinions. My reply to OP's original question would be, yes, you have all the rights afforded an employee based on current legislation and recommend you a) discuss your future employment with your employer, using your original employment contract as departure point, failing a favourable outcome, b) resign and lodge a constructive dismissal dispute at CCMA and c) find alternative employment. Where the battling employer finds the money to pay for his illegal action is of no consequence here, and it is my opinion that the CCMA will rule against him in this case.