Document of Ethekwini Municipality Annexures

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					                                         Annexure 1
Case study 1:

In the case that was heard prior to August 2002, the Labour Court had to grapple with the
problem of whether workers were independent contractors or employees. A trade Union applied
to the Court on behalf of nine of its members – for a determination as to whether or not the
Electricians were employees of the Municipality in terms of the Labour Relations Act (LRA)
and the Department of Labour Act (DLA) a qualified Electrician with N qualifications, NTC
qualifications, a wireman’s license or trade test (1997) 18 ILJ 528 (LC).


The object of the worker’s contract was to render a service, rather than to achieve a specific
result. This came up in the conclusions due to a number of clauses in their contracts, which
referred to the requirement that they render “services”. That is, they did not have a project with
a set goal to be archived.

They were not specifically contracted to conduct, rather they were contracted to render services
on behalf on someone else (sub-contracting), this is called unfair labour practice.

In addition, the court found the Electricians were required by their contracts to be “available at
all times for the prompt and efficient performance of any service” and that the electricians were
“contractually required on 24 hour basis” This indicated to the court that the electricians were at
the back and call of the employer rather than working independently according to their own

The court also found the employer had the right to control the manner in which the electricians
rendered their services. This conclusion was arrived at after the court examined the following
clauses in the contract: “the electrician shall perform his duties in strict accordance with
standing instructions as the director-general may deem necessary to issue from time to time”.

All these factors persuaded the Court that the electricians were employees rather than
independent contractors.
                                        Annexure 2
Case study 2:

Assignees from agencies, temporary employment services and labour brokers:

The law makes it clear that any workers assigned to your business by an agency are not your
employees. An assignee is the employee of the agency concerned. This is the case unless the
agency sends you a candidate for a job, and you hire the candidate as an employee
(Section 198) Of the Labour Relations Act. LRA, as would be in the case of a recruitment

If the agency is paying the worker and you have no contractual arrangement with the worker,
then you are not the employer. Rather, you are a client of the agency for supplying the worker.
The assignees are the employees of the agency. And this is what these main contractors are
doing, employing sub-contractors to do work for them and the municipality is paying them fat
cheques for doing nothing, just seating back and abuse the municipality’s funds.

Warning: Should the assignee’s rights with regard to the BCEA be infringed, you will be
jointly and severally liable with the agency.

However, if your business is a “temp” employment agency or labour broker, then you are the
employer of the workers assigned to clients. Your employees are entitled to the protection of the
labour laws.
                                      Annexure 3

Case study 3:

9 reasons employees may lodge a grievance for:

   1.    Incompatibility between employees.
   2.    Unsatisfactory working conditions.
   3.    Unfair implementation or non-implementation of company policies or procedures by a
         manager or supervisor.
   4.    Unfair treatment by a manager or supervisor.
   5.    Harassment (e.g. sexual or racial harassment).
   6.    The attitudes, values or prejudices of managers or other employees.
   7.    Rumours about things that affect employees.
   8.    Failure to acknowledge proposals that the employee has made.
   9.    Failure to deal with issues the employee has raised.
                                       Annexure 4

Case study 4:

Discriminatory selection practices:

   1.    Race: One of your managers might turn down an applicant for a position as a
         Manager because the applicant is black. Your manager hires one of his Indian friends
         instead at a salary of R60 000.00 a month.
         (case number: CA06/99) with ref.

         Nepotism is a discriminatory selection practice (1997, 2BLLR249 CCMA)

         Example: The labour court found that a Villiersdorp mayor unfairly discriminated
         against job candidates by preferring a family member for a position (De Kok vs
         Munisipaliteit van Villiersdorp 2001 10 BLLR 1111) with ref.