A friend loses their job and is struggling to find work in a flooded job market, so you offer to help them with work to get them on their feet, but does this constitute employment in terms of the Labour legislation?
What is the definition of an “employee” in terms of the Labour Relations Act 66 of 1995 (later referred to as LRA)?
The LRA defines an employee as:
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.
In a recent case, Du Plessis vs Garella (2022) 31 CCMA 6.13.6 also reported at (2022) 3 BALR 271 (CCMA), the Respondent contended that there was no employment relationship as the Applicant was merely helping her out as a friend and that their friendship had broken down which led to the end of the relationship. In summary of the facts of the case, the arrangement was for the Applicant to look after the Respondent’s son after school and drive him to extramural activities. During the Covid-19 pandemic, the son’s school implemented an online learning program, and the Applicant agreed to assist with this. A week later, the Respondent sent the Applicant a WhatsApp message informing her that her services were no longer required, which was withdrawn a week later.
The Applicant then resigned, claiming constructive dismissal as the Respondent’s boyfriend took over management of the Applicant’s work, and the environment became intolerable for the Applicant to continue working.
The matter was referred to the Commission for Conciliation, Mediation and Arbitration, and the Commissioner had to establish whether there was an employment relationship between the Applicant and Respondent.
A person is presumed to be an employee if any one of the seven (7) factors listed in Section 200A are present in the relationship between that person and the person for whom they work or to whom they render services.
- the manner in which the person works is subject to the control or direction of another person;
- the person’s hours of work are subject to the control or direction of another person;
- in the case of a person who works for an organisation, the person is a part of that organisation;
- the person has worked for that other person for an average of at least forty (40) hours per month over the last three (3) months;
- the person is economically dependent on the other person for whom that person works or renders services;
- the person is provided with tools of trade or work equipment by the other person; or
- the person only works for or renders services to one person.
The Commissioner found that the Applicant had been offered a “job” by the Respondent and had been given a set timetable to perform her work within specified times. Therefore, the Respondent controlled her work hours, and the parties had agreed on remuneration for services rendered. In considering Section 200A of the LRA, there was more than one factor listed to prove that there was an employment relationship between the parties. Therefore, the Applicant could pursue the constructive dismissal dispute referred to the CCMA.
The Commissioner found that the Applicant’s resignation was because of her intolerable working environment and awarded the Applicant compensation.
It is important to remember that merely “helping out” a friend is all good and well, but if there is an employment relationship, that “friend” could be deemed as an employee and afforded the necessary protection in terms of the Labour Laws.
Article by: Written by: Claire Turner
Provincial Manager – Durban