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Are you an Employee (Part 2)
Well, in part 1 we looked at the factors that indicate that one is indeed an employee and not a contractor. The ILO guidelines set clear guidelines and they are quite straightforward. As discussed in previous article Employers tend to want to avoid responsibilities associated with having employees such as training, following proper termination of employment procedures, taxes and other benefits employees are legally entitled to. Interestingly there is a quite a whole other dimension to as who fits into the bracket an employee. Persons performing an illegal act or illegal work like a gang of bank robbers or assassins for example may fit well into the ILO regulations in as for as being labelled an employee because of the principle “ex turpi causa non oritur actio” (no action arises out of a dishonourable cause) . However because of the illegal work they do they will not be legally recognized as employees. It should be that simple however that’s not the end of the inquiry. What of a person working and providing a lawful service but for some reason has a status that is undesirable and affects his/her legal standing in as far as work is concerned. We shall look at a few common cases and instances where the illegal status of a worker or where the work the worker performs is illegal. Does that person now then meet the criteria of being legally recognized as an employee?
1. Illegal Immigrants
The world has become such a global village and this village is slowly eroding borders between nations as migration has become a way too common feature in our lives. Millions of people migrate from their home countries to others in search of better economic opportunities. Sadly this reality has created an outer rim class of people that migrate, live and work in other countries without the proper documentation. What then is the status of such workers, such employees? Are they recognized as employees? The South African Constitution has been interpreted in case law in a manner that accomodates these workers/employees. Section 23 of The Constitution of South, 1996 provides that everyone has the right to fair labour practices. This was interpreted well in the case Discovery Health vs CCMA 2008 BLLR 633 (LC). In this particular case a foreign person worked for Discovery Health but did not have a valid work visa. He was subsiquently dismissed as a result of his illegal immigrant status. He filed an unfair dismissal case at the CCMA and the CCMA held the following;
Section 23 of the Constitution 1996 was wide enough to include illegal immigrants as the text was designed to include “everyone”. Therefore every one in the bracket of a worker or employee was included in the definitition.
The CCMA thus had jurisdiction to make a ruling on the matter regardless of the illegal status of the person/employee.
Another interesting ruling in the case was that it was the employer and not the employee that had contravened the Immigration act as it is the Employer’s responsibility to make sure he/she doesn’t hire prohibited people.
The Immigration Acts prohibition of illegal foreigners does not void the employment contract of such foreigner.
2. Sex Workers
A wise man once said, “ we need to legalize commercial sex work so we can better protect sex workers from the true criminals such as pimps, traffickers, rapist and violent abusers”. This wise man was truly wise…. But the point I want to drive home is, “are sex workers considered employees and can they be afforded protection under the law?”
The Kylie vs CCMA & Others 2012 SA 383 (LAC) case which is a “beautiful” expression of Labour Law and ILO principles. In the Appelate divsion of the Labour Court of South Africa the appellant in this case was a sex worker who alleged she was unfairly dismissed from her employment at a massage palour. At the CCMA and Labour Court it was held that these forums lacked juristiction and because the work in question here was illegal the contract of employment was thus void and unenforceable respectively. The Labour Court held that a sex worker was not entitled to protection against unfair dismissal in terms of the Labour Relations Act (LRA) as this would be contrary to common law principles incorporated in the Constituion that a court ought not to sanction or encourage illegal activities.
The Labour Court further held that although section 23 of the Constitution of South Africa provides that, “everyone has the right to fair labour practices,” it did not protect a person engaged in illegal employment.
The Labour Appeal court (LAC) then held that Constitutional rights including the right to fair labour practices vests in everyone, even if no formal contract of employment in concluded and even if the work is illegal. The (LAC) further held that the CCMA (Commision for Conciliation Mediation and Arbitration) had jurisdiction to determine such matter as the one at hand.
The LAC also held that a sex worker as the one in this case was to be considered as an employee for purposes of the LRA and the Constitution. The Court noted that sex workers could also be entitled to form and join trade unions although collective agreements between brothels and sex workers which amount to the commission of a crime would not be enforceable.
To make a long story short sex workers are entitled to rights unders The LRA and the Constitution. This is inline with ILO regulations on Employment.
3. Presumption of Employment
These two case are prime exams of how employees enjoy protection under the Constitution and the law. The LRA (section 200A) and BCEA (section 83A) have provisions that create a presumption of employment meaning there is a rebutabble presumption that a person providing a service to another is an employee. The absence of a contract of employment is not fatal in determining whether a person is an employee. As shown by the two cases illegal or unathorized work or wokers still can receive protection from the Constitution and other laws. Section 23 of The Constitution is quite a powerful provision in as as far as protecting employees. Its wording includes the word “everyone” which gives it a very wide scope or the next best thing.
Are you an Employee?
In the modern times, well through out the ages employment has been the part of the economic system that forms the very essence of human socio-political and economic life. The realm of employment has had quite the story since the dawn of mankind and you best believe the story ain’t over yet, no not by a long shot. The fate of the world has hung on the relationship between employer and employee for thousands of years. Every economic age that humanity has lived has been carried on the back of the employee. Sadly the appreciation employees have received has at times been less than that of a left toe nail. Employers have often taken advantage of this relationship. As a wise man once said, “employers ghost it when they make profit” (not my words)lol. More so from the first Industrial revolution up until the present modern era the relationship of employer and employee has become very dynamic and in many ways has also become quite a bit of a pickle to identify especially in legal terms. There is a fine line between an employee, a contractor/service provider or a slave. Yes slavery is alive my fellow humans beings. My Labour law lecturer always started a lecture by saying, “labour law, isn’t it wonderful”. Well without rambling on let me “launch a probe into this matter”.
Every country has its own labour law regime. The differences in the labour laws are mainly distinguished from conservative to liberal schools of though that mainly differ on the nature of employment contracts. The International Labour Organization (ILO) regardless of these differences in approach was established to protect the rights of workers and to create labour standards and legal uniformity for its member states. The ILO was established in 1917 as part of the Treaty of Versailles to help establish social justices principles especially the with regards to the rights of workers and currently has 187 member states. With regards to the matter at hand The ILO adopted the Employment Relations Recommendations, 2006 (No 197), a standard that provides member states with guidelines on how to establish the existence of the employment relationship. Though these are recommendations member states often adopt such recommendations either partly or in full or apply the principles when drafting related legislation.
Further to the ILO Regulations 197 the dominant impression test was applied by courts mainly in common law jurisdictions to determine whether a person/worker was indeed an employee. The South African case below and table show how the test was applied. The test is still applied by courts and and snuggled itself in Legislation concerning the same.
But first the following factors should be taken into account when applying the test:
- The work is carried out under the instructions and control of another party;
- The worker is integrated into the organization of the enterprise;
- The work is to be done mainly for the benefit of the other party;
- The work is carried out personally by the worker;
- The work is performed within specified working hours; or
- The work requires the provision of materials, machinery and tools by the party who requests the work to be done.
Smit v Worken’s Compensation Commissioner 1979 (1) SA 51 (A) case:
Dominant impression test.
There is no single factor that independently and conclusively determines the existence of a contract of employment.
Therefore all aspects should be considered and the court must look at the ‘dominant impression’.
CONTRACT OF EMPLOYMENT vs
*see table below*
National legislation within ILO member states largely subscribes to these ILO recommendations and common law in matters regarding the establishment of an employment relationship. In South Africa one of the first countries to recognize fair labour practices as a Constitutional right defining what an employee is became significantly important. The Code of Good practice 2006 (South Africa) which was adopted from the ILO Regulations was adopted and made the standard for interpreting legislation in as far as defining what being an employee entails. Save for the guidelines stated above the Code of Good practice acknowledges how some employers try to evade the title of employee and use quite cleverly worded contracts that classifies employees as contractors for example. Therefore a contract that classifies an employee as a contractor or otherwise will not be enforceable as such and the law will recognize the worker as an employee should he/she fall into the recognized guidelines. So lets take a look at these guidelines and examine how they have been adopted and are used in the labour relations dimension.
1. The work is carried out under the instructions and control of another party
A court may find that there is a contract of employment even if the employer exercises a relatively low degree of control over the employee. The factor of control or direction will be present if the person is required to obey the lawful and reasonable commands, orders or instructions of the employer or the employer's personnel, as to the manner in which they are to work.
Should the person only provide his labour to another who then provides the tools, work schedule, methods and instructions to said person then that person can be deemed to be an employee.
2. The person's hours of work are subject to the control or direction of another person
Should the contract specify the total number of hours of work or make provision for flexible working time, this could be compatible with a contract of employment. The absence of stipulated hours of work in a contract will not necessarily mean that it is not a contract of employment. Sufficient control or direction may be present if the employer is entitled to determine the number of hours that the person is required to work within a specified period - per day, per week or whatever.
3. In the case of a person who works for an organization, the person forms part of that organization:
This largely applies with regard to companies and other organizations. It would not apply for example to a person employing a domestic worker - although in such instances, the domestic worker is obviously an employee. A person who works for or supplies services to an employer as part of conducting his own business interests does not form part of the employer's organization. Therefore, a person who, for example, has a registered business entity and who renders services to another organization, does not form part of that other person's organization. A person who operates his own business bears risks such as bad workmanship, poor performance, price increases and so on. In the case of an employment relationship, the employer will typically bear these risks, and not the employee.
4. The person has worked for that other person for an average of at least 40 hrs per month over the last 3 months;
This provision of time indicates an ongoing relationship which establishes employment. The times vary from country to country but usually it is between 40 to 45 hours over 3 months.
5. The person is economically dependent on the other person for whom he or she works or renders services
If the one person is economically dependent on the other to the extent that his/her income and work activities depend on that one person or organization then that person is an employee.
Part-time employees are generally free to render services to other employers during their off- time, the capacity to do so does not affect the persons status as an employee though.
A contractor will alternatively be able to provide service to different clients and other entities, without having to report to or be under the control of another person in matters primarily to do with how he/she conducts the work.
6. The person is provided with the tools of trade or work equipment by the other person:
Should the one person be provided tools of trade by another then there is a high probability that an employment relationship exist. For example a telephone technician with a specialized company vehicle, tools and equipment who largely responds to repair damages on the telephone system. Such a person can be deemed to be an employee. A contractor on the other hand would bring his/her own tools of trade while working absent instruction from another.
7. The person only works for or renders services to one person/organization.
Well, this one might confuse the “connoisseurs”.lol. But just to clear the air of course seasonal and part time worker can still work for other employers and be recognized as employees still.
Note to employees: an employer wanting to evade responsibilities to his/her employees may craft a contract that strips employees their title as such. This would entail that the employer can dismiss, avoid certain benefits due to an employee or perhaps even dodge tax liabilities without consequence. It is thus important you know and understand your status as such to avoid being exploited in such a manner.
So, in essence these are the guidelines as per the ILO regulations which are largely drawn from common law, various other legislative provisions and principles. The matter surrounding the definition or what constitutes an employee is quite vast and also encompasses the status of “employees” conducting illegal work or who have the status of an illegal emigrant and so forth. Part 2 will explain further.
By, Denis R Maisiri
I QUIT! The Construct of a Constructive Dismissal
Employment is not merely a contract between an Employer and Employee, it is a relationship that can because of its complexity and dynamics be granted a sui-generis classification perhaps up there with marriage (but not exactly). In this relationship one may for a plethora reasons decide to make conditions intolerable for the other to the extent that the other opts out of the relationship and resigns. In the realm of labour law this is known as constructive dismissal. Section 12B (3)(a) of the Labour Act (Chapter 28-01) provides that An employee is deemed to have been unfairly dismissed if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee. This entails that the employee resigned not necessarily on his/her own accord but because the Employer has made the conditions of employment so unbearable that the Employee “opted out”. Employers that seek to dismiss an Employee without following prescribed dismissal processes or that have no substantive reason to dismiss an employee for whatever reason they may have normally employ this method of dismissal. The Employer constructs an environment that is designed to frustrate and distress the employee to the point that the Employee resigns. This form of dismissal has common law roots but has been adopted in various countries’ legislation. I shall focus on the Zimbabwean position though it is safe to say the principles of constructive dismissal are largely similar and are applied in almost the same way in countries that have adopted this as a legally acceptable form of unfair dismissal.
For an Employer acting in bad faith there are advantages of having an Employee resign; it is cheap and the employee normally forfeits any benefits that are legally due to them if the employment contract is terminated lawfully. However dismissing an Employee without just cause and without following the prescribed process can be costly and in certain instances it can damage the image of the company. The aggrieved employee can take legal action against the employer if the employer is brazen about how he/she dismisses an employee without following proper procedure and without substantive reasons.
Though clearly defined and quite easy to understand from the text as proved in the Labour Act, constructive dismissal is notoriously difficult to prove for an Employee. This is primarily because there is usually no paper trail or evidence that shows the Employer was being hostile. Its not like the Employer is going to say; “hey I want you gone and I am making conditions intolerable for you so you can resign”. Furthermore at the time or instance the Employee resigns it is often an emotional decision that is done without thought or consideration of any legal ramifications.
To prove Constructive Dismissal there are 3 essential elements that need to be present;“whether the employee brought the contract to an end.
Whether the reason for the employee’s action was that the employer had rendered the prospect of continued employment intolerable.Whether the employee had no reasonable alternative other than terminating the contract. The onus of proving these requirements rests on the employee.”
In proving all the elements of constructive dismissal the “first order of business” is to prove that the employee resigned. The resignation can be with or without notice. The resignation can be verbal or in writing as well.
The reason for the said resignation must be as a result of the employer making continued employment intolerable. As mentioned above, employers may have many reasons why they would want an employee to resign most of these reasons being sinister in nature. An employer may use force, coercion or use more subtle but equally “effective” means which can frustrate the employee to the point of resignation.
When a resignation is as a result of force, coercion, duress or undue influence it will amount to constructive dismissal. For example if an employee is forced to resign by being threatened with criminal charges if he/she doesn’t constitutes constructive dismissal. It is quite clear that in this particular instance the employer has made continued employment quite problematic to say the least. To the employee it seems the best option would be to resign as continued employment would mean the prospect of facing criminal charges more so when the charges are frivolous or unfounded. This would constitute constructive dismissal as the employer is given “a no win” situation where regardless of what the actual situation would naturally opt to avoid criminal prosecution not withstanding that after such a threat or situation is presented the employment relationship will become “toxic”. In Fonda v Mutare Club HH/40/91 an employee who had incurred shortfalls was forced to resign as an alternative to having the matter handed over to the police and be prosecuted. The court did not hesitate to conclude that the resignation was tainted with duress, thus constituting constructive dismissal.
There are scenarios whereby the employee may resign under what he/she may subjectively believe to be intolerable conditions caused by the employer. For example where the employee faces disciplinary action or any other process the employer can employer can take concerning the employee. In Mudakureva v Grain Marketing Board, an employee was brought before a disciplinary hearing and was found guilty of committing acts of misconduct but before the penalty of dismissal was imposed he was given an option to resign. He elected to resign and thereafter claimed that he was forced to resign. The court’s position was that an employee absent duress or undue influence could not resign and claim constructive dismissal.
As mentioned above, constructive dismissal can be notoriously difficult to prove. The Labour Act provides for various forums which an employee can approach in the case unfair labour practices by the employer or any other such abuses and at the onset an Employer is meant to have internal grievance procedures that allow an aggrieved employee to lodge a grievance which can be (if the stars are aligned) addressed objectively. These are the steps an employee must take before resigning. These steps of lodging grievances and prescribed legal forums ensures a paper trail that then proves that intolerable conditions where created by the employer and the employer did not or failed for correct his/her conduct. Furthermore an aggrieved employee has to exhaust all the above stated remedies before resigned and lodging a constructive dismissal case. A resent case in South Africa puts all this in proper perspective.
In Centre For Autism Research and Education CC vs CCMA and Others 2020 11 BLLR 1123 LC the labour court had to decide on the issue regarding lodging grievances before resigning in a constructive dismissal matter. The court regarding the same held that whereas lodging grievances was an essential element in a constructive dismissal case it was not necessarily futile if no such grievances were lodged especially in circumstance that didn’t allow for fair resolution of the grievance.
In conclusion constructive dismissal is quite easy to understand but quite a nightmare to prove. It is always essential to follow internal grievance processes in order to keep a paper trail of the intolerable conditions propagated by the Employer. Employers must follow proper procedures where they are no longer happy with an Employee or risk being responsible for unfair dismissal (constructive dismissal) where an employee resigns due to intolerable working conditions. Employees must also do their best to exhaust internal grievance procedure or at least make an attempt in that regard.