Employment Security

Who are non-standard workers?

Non-standard employment is an umbrella term for different employment arrangements that deviate from standard employment. It includes temporary employment; part-time and on-call work; temporary agency work and other multi-party employment relationships; as well as disguised employment and dependent self-employment. Most of the employment in the platform economy is non-standard employment. 

Employment Status 

Employment status determines access to workplace rights. By classifying a person as an independent contractor, an employer is no longer required to guarantee various employment benefits, such as paid leave (annual, maternity, paternity, sick, etc.), pay social security contributions on payroll and income tax on wages. Generally, what differentiates an employee from an independent contractor is control or subordination. A worker or an employee is a person who works for another person (natural or legal), under the latter's subordination or control. On the other hand, an independent contractor does not work under the "authority" or "control" of another person.

Most workers in the platform economy are not regarded as employees. If they do not have an employment contract, the law essentially sees them as independent contractors who provide services to the platform or to the platform's users. However, when they perform their duties full-time and have to abide by the rules of the platform, a judge can conclude the workers are actually employed. Court decides the nature of the relationship (employee vs independent contractor) based on the legislation, i.e., Basic Conditions of Employment Act and Labour Relations Act. 

Section 200A of the Labour Relations Act and section 83A of the Basic Conditions of Employment Act, both amended in 2002, established the following criteria to determine whether an employment relationship exists: 

  1. the manner in which the person 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 of a person who works for an organisation, the person forms part of that organisation;

  4. the person has worked for that other person for an average of at least 40 hours per month over the last three months;

  5. the person is economically dependent on the other person for whom he or she 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.

Any person who works for, or renders services to, any other person is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, if any one or more of the above factors is present. 

The above provisions however do not apply to any person who earns in excess of the amount determined by the Minister in terms of section 6(3) of the Basic Conditions of Employment Act. The amount currently is R205,433.30 per annum. If a proposed or existing work arrangement involves persons who earn amounts equal to or below the above referred amount, any of the contracting parties may approach the Commission for an advisory award on whether the persons involved in the arrangement are employees. NEDLAC must prepare and issue a Code of Good Practice that sets out guidelines for determining whether persons, including those who earn in excess of the above referred amount.

Written Employment Particulars

An individual employment contract may be of a definite or indefinite duration and may be concluded orally or in writing. The BCEA requires employers to provide a written employment contract to the workers at the start of employment. An employment contract must state the following information:
* The full name and address of the employer
* The name and occupation of the employee, or a brief description of the work for which the worker is employed
* The place of work, and, where the worker is required or permitted to work at various places, or an indication of this
* The date on which the employment began
* The worker's ordinary hours of work and days of work
* The worker's wage or the rate and method of calculating wages
* The rate of pay for overtime work
* Any other cash payments that the worker is entitled to
* Any payment in kind that the worker is entitled to and the value of the payment in kind
* How frequently remuneration will be paid
* Any deductions to be made from the worker's remuneration
* The leave to which the worker is entitled
* The period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate
* A description of any council or sectoral determination which covers the employer's business
* Any period of employment with a previous employer that counts towards the worker's period of employment
* A list of any other documents that form part of the contract of employment indicating a place that is reasonably accessible to the worker where a copy of each may be obtained.

The employer must ensure that all the written particulars are clearly explained to the worker in a manner understandable by the worker. If there is a change in these particulars, the employer is required to revise the written document and supply a copy of the document reflecting the change in the situation to the worker. The employer is obliged to keep the written particulars for a period of three years after the termination of employment.

However, these conditions are not applicable to workers employed for less than 24 hours in a month and for employers employing less than five workers.

Source: § 28-29 of the Basic Conditions of Employment Act 1997 (last amended in 2018)

 

Non-Standard Workers' Rights on Written Contracts - Platform workers

The contracts between the worker and platform are written. These are generally referred to as click wrap agreements in which the user signifies his or her acceptance by clicking a button or checking a box that states “I agree.” 

The common denominator with all platform jobs is that the platform itself is not an employer. It is seen as a tool to facilitate the supply of services between a client and a supplier. In most cases, the contract between the platform and the supplier/worker can be terminated immediately from either side. In some cases, the client indicates what exact services are required (e.g. Nomad Now, for professional digital and media skills, and SweepSouth, for housekeeping skills).

Fixed Term Contracts

South African labour Law prohibits hiring fixed term contract workers for tasks of a permanent nature. However, the law does not prescribe the maximum duration of a single fixed term contract. The duration of a fixed term contract has to be clearly specified between the parties. Such a contract endures for a specified period, or upon the happening of a particular event or until the completion of a particular task. There is no clear mention of the maximum limit (including number and duration of renewals) in the labour laws.

The Labour Relations Act just mentions that non-renewal of a fixed term contract is equivalent to a dismissal in circumstances where the worker expected the employer to renew the contract on the same or similar terms but the employer failed to renew the contract at all or offered to renew it on less favorable terms; or where the employee expected the employer to retain the employee in employment on an indefinite basis but otherwise on the same or similar terms as the fixed term contract, but the employer offered to retain the employee on less favourable terms, or did not offer to retain the employee.

Source: § 186 (b) of the Labour Relations Act No. 66 of 1995 (last amended in 2014)

Probation Period

At the beginning of an employment contract, the employer can set a probationary period in order to evaluate the worker's performance before confirming the appointment.

Laws do not specify the maximum probationary period. The Code of Good Practice (Schedule 8 of Labour Relations Act) only stipulates that a probationary period should be of reasonable duration, negotiated and stipulated in the employment contract.

If the employer determines that the worker's performance is below standard or the worker is incompetent, the employer should give a reasonable evaluation, instruction, training, guidance or counseling to allow the worker to render a satisfactory service. The employer may either extend the probationary period or dismiss the worker. The procedure of dismissal includes an investigation to establish the reasons for the unsatisfactory performance and the employer should consider other ways, short of dismissal, to remedy the matter.

Source: §8 of the Schedule 8 (Code of Good Practices) of the Labour Relations Act No. 66 of 1995 (last amended in 2014)

Regulations on Employment Security

  • Basic Conditions of Employment Act, 1997 (amended in 2002 & 2013)
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