Some time ago, I was approached by a person who used to work for a broadcaster as a programme producer.

After having worked for the broadcaster for almost nine years, he received a letter from them, informing him that he had to adapt the character of his programme content to appeal to a wider audience or they would terminate his contract.

The reader used the station’s equipment to produce the shows and was remunerated for the finished product and not for the time he spent producing the show.

He subsequently produced two more programmes and then received another letter, informing him that they no longer needed his services. He wanted to know whether this was acceptable or not and whether this constituted an unfair dismissal.

Before considering the question whether he was unfairly dismissed or not, one needs to establish if he was classified as an employee as defined by the Labour Relations Act (LRA).

If he does not satisfy the definition of an employee as set out by the act, he would have no claim of unfair dismissal. However, a code of good practice – which is applicable to all persons employed – has also been published to guide the question of who is an employee.

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. The act also includes any other person who in any manner assists in carrying on or conducting the business of an employer.

The LRA – in terms of Section 200A – has established a rebuttable presumption as to who is an employee. This presumption is only applicable to people who earn less than the Basic Conditions of Employment Act’s (BCEA) threshold, which is approximately R149 000 per year.

Until the contrary is proven a person who works for, or renders services to, any other person is presumed – regardless of the form of the contract – to be an employee; and if any of the factors listed in the act apply.

By his own admission to the Receiver of Revenue, the reader was an independent contractor who supplied his employer with invoices for work rendered. He didn’t make any contributions to either the medical aid scheme or pension fund.

He wasn’t entitled to any sick leave, nor was he subjected to the disciplinary code of the company.

According to these facts it is clear to see that – even though he worked for the broadcaster for almost a decade – he never was an employee as defined by the LRA.

Depending on the terms of the contract between himself and the company, terminating his contract could indeed have been lawful.

If, however, there was a breach of contract from the company’s side, the reader could file suit in the high court to resolve the matter.

It is also important to remember that even if a person has no written contract with his employer, but is an employee as defined by the LRA, he will enjoy the rights of an employee.

Over the years the court developed several tests to determine which factors define someone as an employee, and ultimately adopted the “dominant impression” test.

With this test, the following characteristics of a contract of employment were identified:

The employee renders services to the employer and is at his beck and call; the employer determines the employee’s job description; the employee is the employer’s subordinate; a contract of service is terminated by the death of the employee and it terminates on expiration of the period of service entered into.

The employer’s right of supervision and control is one of the most important indications that a particular contract is in all probability a contract of service. The greater the degree of supervision and control by the employer over the employee, the stronger the probability that a contract of service exists between the two parties.

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Wikus van Rensburg is a well-respected labour law attorney in Port Elizabeth in Nelson Mandela Bay.

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