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Who is an employee?

(1)  A 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 following factors is present:

• (a) The manner in which the person works is subject to the control or direction of another person;
• (b) the person’s hours of work are subject to the control or direction of another person;
• (c) in the case of a person who works for an organisation, the person is a part of that organisation;
• (d) the person has worked for that other person for an average of at least 40 hours per month over the last three months;
• (e) the person is economically dependent on the other person for whom that person works or renders services;
• (f) the person is provided with tools of trade or work equipment by the other person; or
• (g) the person only works for or renders services to one person.

(2)   Subsection (1) does not apply to any person who earns in excess of the amount determined by the Minister in terms of section 6 (3).

(3)  If a proposed or existing work arrangement involves persons who earn amounts equal to or below the amounts determined by the Minister in terms of section 6 (3), any of the contracting parties may approach the CCMA for an advisory award about whether the persons involved in the arrangement are employees.

Should you require advise of legal counsel for your contract with an employee, please do not hesitate to contact us for a consultation.

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In terms of Section 29 of the BCEA, the employer must supply the following particulars in writing, namely:

1. the full name and address of the employer;
2. the name and occupation of the employee, or a brief description of the work for which the employee is employed;
3. the place of work, and, where the employee is required or permitted to work at various places, an indication of this;
4. the date on which the employment began;
5. the employee’s ordinary hours of work and days of work;
6. the employee’s wage or the rate and method of calculating wages;
7. the rate of pay for overtime work;
8. any other cash payments that the employee is entitled to;
9. any payment in kind that the employee is entitled to and the value of the payment in kind;
10. how frequently remuneration will be paid;
11. any deductions to be made from the employee’s remuneration;
12. the leave to which the employee is entitled;
13. the period of notice required to terminate employment, or if employment is for a specified period, the date when employment is to terminate;
14. a description of any council or sectoral determination which covers the employer’s business;
15. any period of employment with a previous employer that counts towards the employee’s period of employment;
16. a list of any other documents that form part of the contract of employment, indicating a place that is reasonably accessible to the employee where a copy of each may be obtained.

This Section further directs that when any one of the above matters changes the written particulars must be revised to reflect the change; and the employee must be supplied with a copy of the document reflecting the change.

It is further evident that if an employee is not able to understand the written particulars, the employer must ensure that they are explained to the employee in a language and in a manner that the employee understands.

Written particulars in terms of this Section must be kept by the employer for a period of three years after the termination of employment.

In Rumbles v Kwa Bat Marketing (Pty) Ltd it was stated that Section 29 requires only written particulars of employment and not a written contract. It was noted further that a contract of employment may be in writing or oral, and its terms may be express or tacit. There are no formalities required.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Regarding the first part of the question, we need to turn to Section 40 of the Basic Conditions of Employment Act, Act No.75 of 1997, which directs as follows:

“On termination of employment, an employer must pay an employee –

(a) for any paid time off that the employee is entitled to in terms of section 10(3) or 16(3) that the employee has not taken;

(b) remuneration calculated in accordance with section 21(1) for any period of annual leave due in terms of section 20(2) that the employee has not taken; and

(c) if the employee has been in employment longer than four months, in respect of the employee’s annual leave entitlement during an incomplete annual leave cycle as defined in section 20(1) –

(i) one day’s remuneration in respect of every 17 days on which the employee worked or was entitled to be paid; or

(ii) remuneration calculated on any basis that is at least as favourable to the employee as that calculated in terms of
subparagraph (i).

In Jardine v Tongaat-Hulett Sugar Ltd. it was held that section 40(b) qualifies the employer’s obligation to pay for any period of annual leave that has not been taken by, inter alia, limiting it to annual leave due in terms of section 20(2), i.e. 21
consecutive days; it therefore does not apply to leave days in excess of the statutory minimum.

However, it was held that a claim in respect of excess leave is not forfeited, although it cannot be enforced in terms of section 40(b).

At issue was whether the employer’s leave policy, which provided for more annual leave than the statutory minimum but also for the forfeiture of excess leave, was more beneficial than the BCEA.

The court held that section 40(b) is more favourable to employees than the employer’s policy because it does not provide for the forfeiture of excess leave.

Neither section 20(4) nor 40(b), furthermore, precludes an employee from accumulating leave or being paid for it. In this regard also, the employer’s policy was found more disadvantageous and it was therefore held that section 40(b) prevailed over the employer’s policy regarding forfeiture. This reasoning applied only to leave
in terms of section 20(2) and not to excess leave.

However, it was found that the employer had to pay the excess because, in terms of section 20(4) read with the employer’s leave policy, the employer had to ensure that the employee took his annual leave whenever it was due.

Now, regarding the Certificate of Service, Section 42 of the same Act clearly states that upon the termination of employment, an employee is entitled to a certificate of service stating –

(a) the employee’s full name;
(b) the name and address of the employer;
(c) a description of any council or sectoral employment standard by which the employer’s business is covered;
(d) the date of commencement and date of termination of employment;
(e) the title of the job or a brief description of the work for which the employee was employed at date of termination;
(f) the remuneration at date of termination; and
(g) if the employee so requests, the reason for termination of employment.

On the request of the employee, the reason for termination of employment can be stated on the certificate.

Just remember that this Chapter, namely Chapter 5 of the above Act, does not apply to an employee who works less than 24 hours in a month for an employer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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