Course:Post Graduate Diploma in Industrial
Lecturer:Dr Hilda GroblerDue Date27/09/2018
IN LIMINE RULING
Case number: KNDB – 1261-18
Commissioner: Nirvashnee MaharajDate of Ruling: 20 August 2018
In the In limine Matter between
Joe Snoap Applicant
Applicant’s address : P O Box 759
Telephone : 072 569 4587
Respondent’s Address : P O Box 9537
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
The applicant in this matter, Mr Joe Snoap lodged a dispute with the CCMA.
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The respondent is cited on the cover sheet as SPS.
ISSUES TO BE DECIDED
I must decide if the applicant is an employee for the purpose of the Labour Relations Act 66 of 1995, as defined in Section 200A.
The true nature of the dispute
Should the school be joined as a party to the dispute?
The applicant worked as volunteer as a crossing officer every morning from 6.30 to 8.30 and every afternoon from 12.00 to 1.30.
He volunteered to this position when John Williams was taken ill until John Williams would be well, unfortunately he (Williams) passed away about six weeks later.
He continued in this position as a volunteer until six months later, when he decided that he like to be appointed to this position in a permanent capacity.
On approaching the school principal, he was told that Williams was employed by SPS (Safety and Protection Services) and was given a letter to take to SPS.
On approaching SPS, he was told that it no longer had a contract with the school and it did not have a vacancy to employ him.
He then lodged a dispute with the CCMA.
ANALYSIS OF EVIDENCE AND ARGUMENT
Section 213 of the Labour Relations Act 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 : and
any person who in any manner assists in carrying on or conducting the business of the employer.
Part b) is broad enough to include Joe Snoap. It is fairly obvious that he was assisting in and conducting the business of the employer as a crossing officer in ensuring that the schoolchildren crossed over safely.
The Code introduces a new comprehensive test which is the “reality of the relationship test.” This requires that despite the form of the contract, the person in deciding whether someone is an independent contractor or an employee must consider the real relationship between the parties.
I have also applied my mind to great extent in determining the definition of a “volunteer”. A Volunteer is defined as:” persons who choose to provide services for non-profit organizations or charities for which they do not expect compensation. In a profit-based organization, any person allowed, directly or indirectly, to perform work normally done by employees is considered to be an employee, not a volunteer.”
Even if a person offers a service, the onus is on the organisation to make sure the role available meets the criteria to be considered as a volunteer position. If the organization does have a volunteer and would like to provide the opportunity, there should be a signed agreement that clearly indicates that the work being done is unpaid and voluntarily done.
The volunteer should not have a clearly defined ‘job’ but rather learning opportunities and options for growth and development.
the volunteer should have flexibility in scheduling the number of days and hours worked (although it is reasonable to establish shared expectations on this beforehand)
The employee should avoid giving the volunteer critical tasks that would otherwise be done by an employee of the organization.
The employee should not imply a promise of employment upon completion of the volunteer term
The applicant does not make any reference to any signed agreement. On the second criteria, the applicant had a clearly defined job which was to cross the children over. There was no learning opportunities or options for him and he had no flexibility in scheduling his own working hours. The children arrived at school from 6.30 to 8 and left from 12.00 to 1.30. He also performed a critical task that would be normally performed by an employee. He was there for a period of more than six months. He was there for over six months. It was reasonable for him to assume a promise of employment.
I proceed to consider and make findings on the various factors identified in the Code of Good Practice: Who is an employee?
“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, if one or more of the following factors are present.”
the manner in which the person works is subject to the control and direction of another person;
the person’s hours of work are subject to the control or direction of another person;
the person has worked for that person for an average of at least 40 hours per month over the last three months;
the person is economically dependent on the person for whom he/ she works or renders services;
if the person is provided with the tools of the trade or work equipment by that person
the person only works or renders services to that person or
In the case of person who works for an organisation, the person forms part of the organisation.
Joe Snoap renders a service from 6.30 to 8.30 and from 12.00 to 1.30 every week day and has done so for the past six months. Therefore he renders a service of 60 hours per week and has done so for the past six months.
The presumption of “employee” in 200 A of the LRA and section 83 A) of the BCEA) does not apply to employees who earn above the threshold salary of R205 433.30.
In “Kylie v CCMA & others (2008) 9 BLLR 870 (LC), the Labour court held that Kylie was an employee as envisaged in Section 213 of the LRA. It further said that the definition was broad enough to include workers without a valid contract. Therefore, I conclude that even though the applicant did not have a valid contract, he can be considered to be an employee.
I therefore conclude that the applicant is an employee and not an independent contractor as he has met one of the presumptions.
The nature of the dispute
CCMA commissioners are duty bound to satisfy themselves that the requisite jurisdictional facts conferring jurisdiction on the CCMA exist. In assessing whether the CCMA has jurisdiction to entertain a dispute, the commissioner must determine what the true nature of the dispute is. The applicant referred the dispute as a discrimination dispute to the CCMA.
Section 187 (f) of the Labour Relations Act 66 of 1995 states:
“that the employer unfairly discriminated against an employee, directly or indirectly ,on any arbitrary ground, including , but not limited to race, gender, sex ,ethnic or social origin, colour, sexual orientation, age, disability, religion ,conscience ,belief, political opinion, culture, language, marital status or family responsibility
The CCMA has exclusive jurisdiction in all matters concerning discrimination .Section 10 (2) of the EEA (EEA) states that an employee is required to refer to the CCMA such disputes within six months of the alleged act of the unfair discrimination. Section 10(5) of the EEA states that the CCMA must attempt to solve the dispute through conciliation. The employee will also have to prove that there was a reasonable attempt made to solve the dispute, including lodging an internal grievance and the process came to a dead-end as it were.
Joe Snoap did approach the school principal and seemingly all internal processes had failed when the principal gave him a letter of commendation and advised him to approach SPS. He also referred the dispute within the six month time- frame.
I therefore conclude that the applicant was discriminated against on arbitrary grounds
Therefore the CCMA has jurisdiction to hear this matter.
When the applicant approached the school principal, he was told that Williams was not employed by the school but by SPS (Safety and Protection Services). He then lodged a dispute and cited SPS as the respondent.
Having considered this, it seems that the school has a substantial interest in the matter and any decision taken in resolving the dispute will affect the school. In the leading case of Amalgamated Engineering Union V Minister of Labour , the Appellate Division held that is was necessary to join as a party to litigation any person who has a direct or substantial interest in any order that the court might make in that litigation.
I am further guided by CCMA rule (26) (1) that states that a party may be joined to the proceedings if their right of relief depends substantially the same question of law or fact.
It is hereby ordered that:
The CCMA has jurisdiction to hear the case.
The School must be joined as the 2 nd Respondent in the above matter.
The applicant must within 14 days of receipt of this Ruling serve the 2nd Respondent with copies of all the notices and papers.
Dated at Durban this 20th Day of August 2018