Twenty-eight female guards were unfairly dismissed by a security company because the client‚ Metrora.
The Labour Relations Act protects employees, employers and their respective bargaining agents.
It also makes provision for the Labour Court and the Commission for Conciliation, Mediation and Arbitration (CCMA) or the bargaining councils to have jurisdiction over disputes arising between employers and employees. An employment relationship must exist between the parties before the provisions of the act take effect. Before to seeking relief under the act, the individual concerned must enquire whether they are an employee in terms of the definition contained in the act. The definition of an employee in terms of the act is twofold: firstly, it defines an employee as any person, excluding an independent contractor, who works for another person, or for the state and who receives or is entitled to receive remuneration.
Secondly, it defines an employee as any other person who, in any manner, assists in carrying on or conducting the business of the employer. The first leg of the definition refers to a person who works for another in terms of a contract of employment. It excludes independent contractors and people performing work for which they do not receive or are not entitled to receive remuneration. The second leg of the definition is wider and requires closer scrutiny.
The courts have held that a distinction must be drawn between assisting in the carrying on of a business and performing services which have the effect of providing such assistance. Only the former are regarded as employees. The main reason for the inclusion of the wider definition of an employee is the fact that a person may factually be in an employment relationship with another despite the absence of a formal employment contract, which then necessitates a factual enquiry into whether the worker is an employee. A person who has concluded an employment contract with an employer but has not commenced with his duties is also an employee for the purposes of the act. In order to assist in defining who an employee is, an amendment was introduced to the act. If one of the factors listed below is present, it is presumed that the worker concerned is an employee and the "employer" must then prove otherwise:
1. The manner in which the person who works is subject to the control or direction of another person;
2. The person's hours of work are subject to the control or direction of another person;
3. In the case where a person who works for an organisation, the person forms part of an organisation;
4. The person has worked for that other person for an average of at least 40 hours per month over the previous three months;
5. The person is economically dependent on the person for whom he works or renders services;
6. The person is provided with tools of trade or work equipment by the other person; or
7. The person only works for or renders services to one person. Should the worker be unable to prove that he is an employee in terms of the act, such a worker will not be protected by the LRA and the CCMA, and the Labour Court will not have jurisdiction over disputes between the worker and the employer. - Lavery Modise is a director, and Lebogang Kutumela, an associate, at Routledge Modise in association with Eversheds