WHAT IS MEANT BY ‘A PERSON IS OF THE ORGANISATION’?

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  • #12368
    Ivan Israelstam
    Keymaster

    WHAT IS MEANT BY ‘A PERSON IS PART OF THE ORGANISATION’?
    Section 83A(1) of the BCEA includes, as one of the criterion defining a person as an employee, that: “the person is part of the organisation”. What, in law, makes a person ‘part of the organisation’?

    #12369
    Patrick Deale
    Keymaster

    The phrase is not intended to be a formal legal definition of who is an employee. The formal definition of “employee” is contained in the LRA definitions.

    Instead, the phrase is used in the context of one of 7 factors to consider when assessing whether a person is “presumed” to be an employee based on circumstantial evidence. Evidence of any one or more of the factors would be enough to prove the existence of an employment relationship.

    The factors appear in both s83A of the BCEA and S200A of the LRA. They serve as a set of indictors which could create the “general impression” that an employment relationship exists between the person and the organization.

    Some practical examples which could indicate that a person is “part” of an organization are if the employee has a company email address, uniform, petrol card, direct office phone extension number, name-tag etc.

    #12370
    Michael Bagraim
    Keymaster

    ‘Part of the Organisation’ is a very loose phrase and is interpreted differently by various Commissioners and indeed Judges. I don’t recall any Labour Court Judgment offhand, but normally we would look for anecdotal evidence such as whether the person has a business card or is part of the organogram.

    #12371
    Ingrid Lewin
    Keymaster

    I agree with Michael … it is very hard to pin down a precise definition of “part of the organisation”. At best I believe it would require the application of the dominant impression test:

    Quote from John Grogan’s Workplace Law 13th edition

    The LAC has accepted that the ‘dominant impression’ left by the contract and the actual working relationship is the final determinant of the legal nature and consequences of the relationship.

    The ‘dominant impression’ test means what its label implies: the contract and relationship built on it must be examined as a whole to determine whether the impression left looks more like an employment relationship than like something else.

    While it is impossible to compile an exhaustive list of ‘factors’ to be taken into account, the more significant are the employer’s right to select who will do the work, the power to terminate the relationship, the employee’s obligation to work for a given time and for certain hours, whether remuneration is paid for time worked or for a particular result, whether the employer provides the employee with tools, equipment and office space, and whether the employer has the right to deploy the employee as it sees fit.

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