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Thread: Rights as an employee

  1. #11
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    Quote Originally Posted by HR Solutions View Post
    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.
    I think that's a bit unfair. Greig has given details, an explanation and options to the OP. It might just be a bit more complicated than a simple thing.

    In your original answer you said:

    Quote Originally Posted by HR Solutions View Post
    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.
    These are quite true for a certain scenario. Greig has however added that there are alternative scenarios to be considered, such as the guy might actually be able to pay. If a client of yours did not pay you for a placing, would you just take him at his word that he did not have enough money so wanted a 50% discount?

    The suggestions on renegotiating are good ones. However at the end of the day both of you have either said or implied that this relationship is not good and that the OP should seek alternative employment or work as a genuine independent with other sources of revenue. And this bit, I think we can all agree on. The OP should make plans to move on.

  2. #12
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    I think that's a bit unfair. Greig has given details, an explanation and options to the OP. It might just be a bit more complicated than a simple thing.
    More often than not, companies that advise on these sort of scenarios make things much worse. Sometimes you have to way up your options and cut your losses.

    If a client of yours did not pay you for a placing, would you just take him at his word that he did not have enough money so wanted a 50% discount?
    No I would never take him at his word. I would do my homework properly and decide the way forward. In past experience I have had a client that has said this - a very nice guy - after thoroughly checking him out I agreed. Sometimes it is a waste of energy and money to take things further if you know for a fact that you are not going to get any money from someone. I had another client that went into business rescue - same scenario - I accommodated him and at the end of the day he came back. A little compassion is sometimes called for - times are tough out there so I do not agree with some business advice that advises to nail a person and try to twist a contract or an agreement to suit so that they can advise to take a case further.

    At the end of the day this person is an independent consultant - don't try to twist this around to suit to make a case. The employer and the employee at that stage agreed to this.

  3. #13
    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by HR Solutions View Post
    At the end of the day this person is an independent consultant - don't try to twist this around to suit to make a case. The employer and the employee at that stage agreed to this.
    SARS says he is an employee, not an independent contractor.

    The Department of Labour says that he is an employee, not an independent contractor.

    Founder of Growth Surge - Helping entrepreneurs create more wealth and enjoy more freedom.

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    Read it properly - don't read it to interpret what you want it to interpret !

    We will continue to disagree on an interpretation. So be it. My opinion still stands for this guy. Your advice will cost him time & money not guaranteed to get back.

  5. #15
    Diamond Member Justloadit's Avatar
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    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.
    Quote Originally Posted by The Department of Labour says that he is an employee, not an independent contractor.
    A person is presumed to be an employee if they are able to establish that
    one of seven listed factors is present in their relationship with a person for
    whom they work or to whom they render services.
    I have quoted 3 above
    Last edited by Justloadit; 14-Jul-16 at 02:56 PM.
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  6. #16
    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by HR Solutions View Post
    We will continue to disagree on an interpretation. So be it. My opinion still stands for this guy.
    Fine. Let's agree to disagree.

    Quote Originally Posted by HR Solutions View Post
    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?

    Founder of Growth Surge - Helping entrepreneurs create more wealth and enjoy more freedom.

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    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.

  8. #18
    Silver Member Greig Whitton's Avatar
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    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.

    Founder of Growth Surge - Helping entrepreneurs create more wealth and enjoy more freedom.

  9. #19
    Site Caretaker Dave A's Avatar
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    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.

  10. #20
    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by Dave A View Post
    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.

    Founder of Growth Surge - Helping entrepreneurs create more wealth and enjoy more freedom.

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