Please note that this pertains to South African Labour Relations and Best Practice requirements.
Ok, now that most of you have gotten over your initial shock and realized that you are actually an employer and that the person working for you is actually an employee and not a contractor, let’s get into a little more depth here.
1. The Manner in which the person works is subject to the control or direction of another person.
So what does this mean in English? Well for starters it means that the person is required to take note of and follow instructions, procedures and policies as laid down by the employer. Take me for example, I am an independent Consultant. As such I don’t have to follow the rules, policies and procedures of any company that I am Consulting to. I don’t have to follow their dress code, I am not required to be at work (on their premises) at the same time as their staff are, I can come and go as I please without having to ask anyone’s permission, I do not get a salary at the end of the month or a pay slip of any kind.
So basically if you have a “contractor” that you are currently in a ‘relationship’ with, in which they supply you with only labour (for example) and you have to direct or supervise the way in which they work , then guess what – they are an employee.
Let’s take the example of a garden service. They come in once or twice a month, there is a whole team of them under the direction of a supervisor (well hopefully under the guidance of a supervisor). They come in, with their own tools and equipment and mow the lawn, trim the hedges, cut back unnecessary growth, etc., and then off they go. From what I can understand, they are there for a limited period of time. You, yourself don’t need to stand over them and supervise. They know what is required of them and they get on with it. Your only input in this one is right at the beginning, when you set up the contract with their employer to say what your requirements are, in terms of what you want done. You have no say in how the job is done or what tools they should use or what brand of anything they need to use.
In an employment ‘relationship’ the employer has the right to determine which tools will be used, who the staff are going to be, what raw materials are necessary. The employer will determine the work ethics and performance boundaries and rules.
A very strong indicator of when there is an ‘employment’ relationship, as apposed to a ‘contractual’ relationship is where the ‘employee’ is subject to the Company’s, and therefore the employer’s, disciplinary code, company policies, procedures and Code of Conduct.
Next week we will continue with our more ‘in depth’ look at the remaining 6 indicators of ‘Who is an Employee’.