Rights as an employee

[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.