Please note that this pertains to South African Labour Relations Requirements and Best Practice
If you will remember, the sixth indicator of how to determine if the person is an employee is:
6). the person is provided with the tools of trade or work equipment by the other person.
Well that seems to be pretty straight forward, doesn’t it. Obviously they are not talking about pens and pencils and the like, being supplied as tools of the trade, but it would include things like telephones and computers etc.
Should the person be provided with the tools of the trade free of charge or even if the person pays for them at some stage, this would make no difference at all. They would still be considered an employee.
The seventh and final indicator of how to determine if the person is an employee is:
7). the person only works for or renders services to one person.
Clearly someone who has their own business, would not be working or rendering their services to only one company, so this is a really good indicator and easy to spot. The code is also really clear on the fact that is makes no difference whether that work is permitted in terms of the employment relationship or whether the employee is ‘moonlighting’ and is therefore contravening the terms and conditions of their Letter of Appointment.
Don’t forget though that it if any one (and not necessarily all) of the indicators is present, then the person is presumed to be an employee until the employer or the person proves otherwise.
I trust that that makes it a little clearer about who an employee is.
Next week, we will look at some of the different types of rebuttable presumptions, should the employer and/or the person decide to challenge the ruling(s).