LABOUR LAW
STUDY UNIT 1
THE PROTECTION OF THE EMPLOYEE AND THE EFFECT OF COMMON LAW ON
THE CONTRACT OF EMPLOYMENT
Study:
chapters 2 and 3 of
... [Show More] t/book
definition of “employee” in sections 200A and 213 of LRA and section 1 of the BCEA
Note – only employees are protected by labour legislation (therefore important to draw a distinction between
employees and other workers, for eg. independent contractors). Furthermore, only when a relationship is
labelled an employment relationship does it fall under the protective scope of labour laws.
The employment relationship in SA is regulated by the following three main sources:
the Constitution
labour legislation
law of contract (which is regulated by common law)
1. EXCLUSIVE PROTECTION FOR EMPLOYEES IN TERMS OF LEGISLATION
1.1. An employee and an independent contractor
(paragraphs 1 & 2, chapter 2 of t/book)
Labour laws are protective by nature – (picture employment law as an umbrella – only people standing under
the umbrella are protected against the rain. People not under the umbrella will either get wet and cold or
have to find another or different umbrella to provide protection).
Iow – if a person is an employee – he/she is protected by labour law. People not covered by labour
laws will NOT be protected and will have to find other laws to protect themselves.
Primary aim of the Labour Relations Act, 1995 (LRA) – to promote sound relations between employers
and employees in the workplace (section 1).
Workers who are not employees fall outside the scope of the LRA and are, amongst others, not
entitled to protection against unfair dismissal.
For this reason – is NB to distinguish between employees and other workers who do not qualify as
employees, so-called “independent contractors”.
Labour Law – Joanne Study Notes Page 2
It is sometimes difficult to distinguish between an employee and an independent contractor because they
closely resemble each other:
(1) an independent contractor is contracted to perform a specified task or to produce a specific result;
(2) an employee is appointed to render personal services ito a job description.
Eg of this close resemblance:
X appoints Z as a handyman to do specific tasks (for eg fixing the gutters and the roof of a house). X’s
gardener S is also asked to fix things around the house. Although Z and S are doing similar jobs, Z will be
an independent contractor and S will be an employee.
The LRA, Basic Conditions of Employment Act, 1997 (BCEA), the Employment Equity Act, 1998 (EEA) and
the Skills Development Act, 1998 (SDA) all use the same definition of “employee”.
Section 213 of the LRA defines “employee” as follows:
Part (a) of the definition Part (b) of the definition
“any person, excluding an independent contractor,
who works for another person or for the State and
who receives, or is entitled to receive, any
remuneration;”
“any other person who in any manner assists in
carrying on or conducting the business of an
employer…” [Show Less]