BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: firstname.lastname@example.org. Web Address: www.labourlawadvice.co.za. The Labour Relations Act (LRA), in its definition section says that an employee is someone who works for an employer. However, the designers of the LRA failed to define the term ‘employer’. This renders confusing our understanding of what an employer is and what an employee is. Despite the absence of a definition of an employer the LRA uses this term very frequently in placing heavy obligations on the employer by dictating, for example, that:
- Within 30 days of receiving a notice from a registered trade union the “employer” must meet the union to conclude a collective agreement [Section 21(3)]
- An “employer” must disclose to a trade union representative (shop steward) all information relevant to the performance of his/her effectively [Section 16(2]
- A dismissal is unfair if the “employer” fails to prove the dismissal was for a fair reason or was affected in accordance with a fair procedure [Section 188(1]
- The LRA does not define “employer” and that therefore the definition of this term must be derived from the definition of an “employee” which is someone who provides services. An employer is therefore a person who “receives services”.
- Legal personality may be disregarded where a corporation is a mere alter ego or conduit for another person
- Footwear Trading was in control of the business even if it was a separate legal entity and not technically the employer.
- Footwear Trading was confirmed to be jointly liable for payment to the employee of compensation and the appeal was therefore dismissed.