The CCMA and Bargaining Councils do not have jurisdiction to entertain disputes by applicants who are not employees. A jurisdictional point may be raised by the employer that an applicant is not an employee and, if successful, would bring the dispute to an end. It is therefore very important for employers to know who exactly is considered to be an employee.


Section 213 of the Labour Relations Act defines the word employee as follows:

  • 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 meanings corresponding to that of “employee”.


Section 200 A of the Labour Relations Act states:

Until the contrary is proved, a person who works or renders services to any other person is presumed, regardless of the form of the contract, to be an employee, if anyone or more of the following factors are present.

  • 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 forms part of that organisation;
  • the person has worked for that other person for an average of at least 40 hours per month over the last three months;
  • the person is economically dependent on the other person for whom he or she works or renders services;
  • the person is provided with tools of the trade or work equipment by the other person; or
  • the person only works for or renders services to one person.


It is important to note that this section does not apply to any person who earns in excess of the earning threshold as determined in Section 6(3) of the Basic Conditions of Employment Act. The amount is currently R211 596,30 per annum.


Employers should keep the above sections in mind if unsure whether a worker who has referred a dispute is an employee or not.


Article by: Ruaan Heunis

Dispute Resolution Official – East London