The definition of an employee - SA LabourGuide

Section 213 of the Labour Relations Act (LRA) provides that an employee is anyone, other than an independent contractor, who works for another person or who assists in conducting the business of an employer.

This definition omits only service providers who are external and/or truly autonomous.

Section 200A of the LRA states that, unless the contrary is proven and regardless of the form of the contract a person is presumed to be an employee if any one of the following circumstances exist:
• The manner in which the person works or his/her hours of work is/are subject to the direction or control of another person;
• The person forms part of the organisation;
• The person has worked for the other person for an average of at least 40 hours per month for the last three months;
• The person is economically dependent on the other person ;
• The person is provided with tools of trade by the other person; and
• The person only provides services to one person.

It could be argued that anyone doing work as a means of receiving training in their trade or profession would be defined as a learner and not as an employee.

For example, the Skills Development Act and the Manpower Training Act appear to provide for special circumstances where people are signed up for learnerships and apprenticeships purely for purposes of advancing their learning and qualifications.

Work contracts that clearly fall under the jurisdiction of either of these two acts may well not qualify as employment contracts.

In Mokone v Highveld Steel and Vanadium (2005, 12 BALR 5) the arbitrator found that the applicant had done some work for the respondent while he was completing studies financed by the respondent.

Despite this the arbitrator found that the applicant had not been an employee in terms of the LRA and that the council therefore did not have jurisdiction to hear the case.

However, in the case of Andreanis v the Department of Health (2006, 5 BALR 461) Ms Andreanis was appointed as an intern at a state hospital. Four years later she was told to vacate her post as her internship period had come to an end.

She claimed unfair dismissal as she believed that she was an employee and that the end of her internship was irrelevant to her employment status.