Labour Law – For the Employee

“Always be smarter than the people who hire you.”

At Schoeman Attorneys, we understand the embracement and humiliation one faces when being dismissed, reprimanded or merely be subjected to a formal the disciplinary process. Even more so, when you did not expect it based on your impeccable employment record, experience and employment timeframe.

Does the Labour relations Act (hereafter LRA) and the Basic Conditions of Employment Act (hereafter BCEA) apply to you?

An employee is

• any person, excluding an independent contractor, who works for another Person or for the State and
  who receives, or is entitled to receive, any remuneration; and
• any other person who in any manner assists in carrying on or conducting the business of an employer,
  and ‘‘employed’’ and ‘‘employment’’ have a corresponding meaning;

According to the LRA a person is presumed to be an employee if any one of the 7 factors listed in section 200A of this Act or section 83A of the BCEA is present in the relationship between that person and the person for whom they work or to whom they render services.

Seven factors:

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 organization, the person forms part of that organization.
4. the person has worked for the 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 the tools of trade or work equipment by the other person.
7. the person only works for or renders services to one person.

Are you a victim of unfair dismissal?

• This gets measured on substantial- and procedural fairness, in short if no valid reason can be found as to why the employee was dismissed and/ or if the correct procedure was not followed during the disciplinary process.
• If an employee thinks that the dismissal was unfair, in other words that the employer didn’t follow fair procedures or there is not a ‘good reason’ for the dismissal, then the employee can try to challenge the dismissal. If a dismissal is found to be unfair, the employee will be able to get reinstated or re-employed, or get compensation money.
• Caution should be taken when referring the matter to the CCMA. If the matter should go on arbitration it could become a tedious process and expensive at that. The referral should not be a motive to make a quick buck, but rather to be compensated fairly and in a reasonable amount as to what you deserve.

We assist our members when facing:

• Unlawful retrenchments,
• Non payment of salary,
• Unfair dismissals,
• Labour disputes,
• Harassment, victimization, discrimination,
• Disciplinary actions,
• CCMA hearings,
• Labour Court referrals etc.

Let us help you! Contact us now!