HR – Who is an Employee – Part 1

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Please note that this pertains to South Africa Labour requirements and Best Practice.

When your business has gotten to the stage that you need to employ someone to assist you, there are certain guidelines that you should follow in order to meet the requirements of the Labour Relations Act.

Hopefully by this stage you have actually identified what it is that you want them to do, whether you want them as a full day employee or a half day – obviously dependant on the amount of work that there is – and of course whether they are a senior person or a junior person that you can train and/or mold into doing things the way that you want them done.

So now you think that you are sorted and you can start putting out the word, and/or advertising for the staff member that you want!  Not really hey, there are other things to take into consideration.

These are but not limited to:
1.    Are you going to employ them on a full time basis, as a permanent employee ?
2.    Are you going to employ them as a temporary and/or casual basis, or
3.    Are you going to employ them on a sub or independent contractual basis?

Perhaps it is time to step back a little and go back to basics.  It’s time to discover if we actually know “Who is an Employee”?

Over the next couple weeks we will go step by step through the process and discover what is required by law and what the different terms actually mean.

So here is step one.

I have found, during my travels through the SMME market that there are many and I mean many employers, who think that if the staff member is a Contractor, he/she is not entitled to leave, sick leave or any other benefits.

In fact I am sure that I can say with confidence, that there are many employers who think that if a staff member is an Independent Contractor, and he/she has a contract in place that also indicates this, that he/she is not entitled to leave, sick leave or any other benefits that are laid down in the Basic Conditions of Employment Act.

Most employers who think like this are merely using these terms to avoid their obligations in terms of the Labour Laws and Labour Legislation and of course by doing this they are also avoiding things like pension and medical aid and any other benefits that they give to their “Permanent” employees.

For the record: An Independent Contractor is not an ‘employee’ and cannot be an ‘employee’ – so don’t get confused by this.
In next week’s article I will start documenting exactly ‘Who is and Employee’ in terms of the Labour Relations Act.

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