Podcast
Questions and Answers
What is the interpretation of section 198A(3)(b) according to Assign Services?
What is the interpretation of section 198A(3)(b) according to Assign Services?
- Both the TES and client are equally responsible as employers.
- The TES solely remains the employer after three months.
- The TES continues to be the employer indefinitely.
- The client becomes the sole employer after three months. (correct)
According to NUMSA's contention, what kind of employer relationship arises from section 198A(3)(b)?
According to NUMSA's contention, what kind of employer relationship arises from section 198A(3)(b)?
- A dual employer relationship.
- A sole employer relationship. (correct)
- A temporary employer relationship.
- A joint employer relationship.
When the deeming provision under S 198(4A) is triggered, what may an employee do?
When the deeming provision under S 198(4A) is triggered, what may an employee do?
- Refuse to work for either party involved.
- Only institute proceedings against the TES.
- Sue only the client regardless of the relationship.
- Institute proceedings against both the TES and the client. (correct)
What occurs to the TES if the client opts to directly remunerate the employees?
What occurs to the TES if the client opts to directly remunerate the employees?
What does section 198(2) establish between the TES and the placed worker?
What does section 198(2) establish between the TES and the placed worker?
What has to occur for the triangular employment relationship to continue?
What has to occur for the triangular employment relationship to continue?
What does the majority opinion state about the employer relationship during the first three months?
What does the majority opinion state about the employer relationship during the first three months?
Which of the following best describes the dissenting judgment regarding the employer relationship?
Which of the following best describes the dissenting judgment regarding the employer relationship?
What constitutes a justifiable reason for different treatment according to sections 198A(5), 198B(8), and 198C(3)(a)?
What constitutes a justifiable reason for different treatment according to sections 198A(5), 198B(8), and 198C(3)(a)?
What must happen if a dispute remains unresolved after conciliation according to section 198D?
What must happen if a dispute remains unresolved after conciliation according to section 198D?
Which type of employee does section 198D apply to regarding unfair treatment?
Which type of employee does section 198D apply to regarding unfair treatment?
What does section 6(1) of the Employment Equity Act prohibit in relation to justifiable reasons for different treatment?
What does section 6(1) of the Employment Equity Act prohibit in relation to justifiable reasons for different treatment?
What criteria might be considered in the distinction between treating fixed-term/part-time employees and permanent employees?
What criteria might be considered in the distinction between treating fixed-term/part-time employees and permanent employees?
Who is deemed the employer of the placed worker under the TES dynamic?
Who is deemed the employer of the placed worker under the TES dynamic?
Under what condition can the employee still claim against the TES?
Under what condition can the employee still claim against the TES?
What situation does NOT trigger the deeming provision?
What situation does NOT trigger the deeming provision?
Which condition would allow Section 198B not to apply?
Which condition would allow Section 198B not to apply?
In a typical TES dynamic, who is considered the employee?
In a typical TES dynamic, who is considered the employee?
What would happen if the commercial contract is not retained after the deeming provision is triggered?
What would happen if the commercial contract is not retained after the deeming provision is triggered?
Which of the following is a category of employment that Section 198B does not apply to?
Which of the following is a category of employment that Section 198B does not apply to?
What legal body can workers sue if their rights are allegedly violated under the deemed employer condition?
What legal body can workers sue if their rights are allegedly violated under the deemed employer condition?
What is a typical outcome when the deeming provision is triggered in a TES relationship?
What is a typical outcome when the deeming provision is triggered in a TES relationship?
Which scenario implies that the employer might not fall under the deeming provision?
Which scenario implies that the employer might not fall under the deeming provision?
What defines a 'temporary service' according to the specified section?
What defines a 'temporary service' according to the specified section?
Under which condition can an employee be deemed to be an employee of the client?
Under which condition can an employee be deemed to be an employee of the client?
What happens if a temporary employment service terminates an employee's service to avoid certain provisions?
What happens if a temporary employment service terminates an employee's service to avoid certain provisions?
How should an employee deemed to be an employee of the client be treated?
How should an employee deemed to be an employee of the client be treated?
Which of the following statements about the employer's role in temporary services is true?
Which of the following statements about the employer's role in temporary services is true?
What is a possible reason for different treatment of employees performing similar work?
What is a possible reason for different treatment of employees performing similar work?
What is the maximum duration an employee can perform a temporary service for a client?
What is the maximum duration an employee can perform a temporary service for a client?
What is required for an employee to be considered the client’s employee during temporary service?
What is required for an employee to be considered the client’s employee during temporary service?
What was the basis of Piet Wes Civils' claim regarding their employees' contracts?
What was the basis of Piet Wes Civils' claim regarding their employees' contracts?
Which section of the law was referenced regarding the justifiable reason for fixed-term contracts?
Which section of the law was referenced regarding the justifiable reason for fixed-term contracts?
What was a key issue with the verbal contracts of employment?
What was a key issue with the verbal contracts of employment?
What did Exxaro do that impacted the employees of Piet Wes Civils?
What did Exxaro do that impacted the employees of Piet Wes Civils?
In the context of the mentioned contracts, what does 'operational risk' refer to?
In the context of the mentioned contracts, what does 'operational risk' refer to?
What was the main focus of the union's argument regarding the contracts?
What was the main focus of the union's argument regarding the contracts?
What was incorrect about the possibility of future contracts according to the judgment?
What was incorrect about the possibility of future contracts according to the judgment?
What does s 198B(4)(d) specifically mention regarding fixed-term contracts?
What does s 198B(4)(d) specifically mention regarding fixed-term contracts?
What does the term 'indefinite duration contracts' imply in this context?
What does the term 'indefinite duration contracts' imply in this context?
Which factor contributed to the determination that the written contracts could potentially hold issues?
Which factor contributed to the determination that the written contracts could potentially hold issues?
Study Notes
Temporary Employment Services (TES) and Employee Classification
- Definition of Temporary Service: Work for a client by an employee for up to three months, typically as a substitute for a temporarily absent employee.
- Employee Status: An employee performing temporary service under specified conditions may be deemed the client’s employee, subject to certain provisions.
- Indefinite Employment: Once deemed, the employee is treated as employed on an indefinite basis by the client, unless specified otherwise.
Dismissal and Treatment of Employees
- Termination Conditions: Any termination of services to avoid legal obligations related to deemed employment is classified as a dismissal.
- Equal Treatment Requirement: Deemed employees must not be treated less favorably than comparable permanent employees without justifiable reasons.
Employer Relationships in TES Context
- Assign Services v NUMSA Case (2018):
- Majority view: For the first three months, the TES is considered the employer; after that, the client becomes the sole employer.
- Dissenting view: The dual-employer interpretation holds; the TES does not cease to be the employer after three months.
Obligations of Temporary Employment Services
- Liability of TES: The TES is liable only while it maintains a relationship with the client and continues to compensate the worker.
- Termination of TES Role: If the client takes over direct remuneration, the TES ceases to be the employer in that triangular relationship.
Section 198B Conditions and Exemptions
- Exemptions from Section 198B: Does not apply to employees earning above the BCEA threshold or those working for small employers (less than 10 employees) or businesses operational for less than two years.
- Fixed-Term Contract Permissibility: Fixed-term contracts are valid if allowed by statute, sector determination, or collective agreement.
Legal Precedents and Clarifications
- Piet Wes Civils CC Case (2019): Employees claimed fixed-term status due to project-specific contracts but were found to have indefinite contracts as the employer's legal obligations weren't honored.
- Written Contract Requirement: Employees must receive written contracts to validate fixed-term status, which was not fulfilled in the cited case.
Justifiable Differentiation Criteria (Section 198D)
- Permissible Reasons for Different Treatment: Differentiation based on seniority, merit, experience, work quality, or other similar criteria is allowed if not violating Employment Equity Act provisions.
- Dispute Resolution Mechanism: Unresolved disputes within six months can be taken to the CCMA or Bargaining Council for arbitration, allowing for condonation of delays.
Treatment of Part-Time and Fixed-Term Employees
- Application of Section 198D: Section only addresses the treatment of fixed-term or part-time employees concerning equal treatment with permanent employees.
- Lack of Application: Once an employee becomes permanent, Section 198D is no longer applicable regarding treatment for the same work.
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Description
This quiz reviews the regulations regarding temporary service employment under the Act. It focuses on the definitions and conditions that apply to employees earning below the earnings threshold. Test your understanding of these key employment concepts.
