BCHC: Can a volunteer be seen as an employee?

By Venolan Naidoo, edited by Bradley Conradie

Section 3(1)(b) of the Basic Conditions of Employment Act, 75 of 1997 (BCEA) specifically excludes “unpaid volunteers working for an organisation serving a charitable purpose” from the application of the BCEA.

Section 3 of the National Minimum Wage Act, 9 of 2018 (NMWA) also excludes an individual “who performs work for another person and who does not receive or is not entitled to receive any remuneration for his or her services” from the application of the NMWA.

Although the above specific labour legislation excludes a volunteer from being seen as an employee, it often happens that supposed volunteers (receiving periodic allowances) claim to be employees in order to obtain employee rights.

Our law has developed various tests over the years in determining whether there is an employment relationship. These tests have however largely been based on the distinction between independent contractors and employees.

The Code of Good Practice of Who is an Employee also contains a list of factors to determine whether an individual should be considered to be an employee. Both section 200A of the Labour Relations Act, 68 of 1995 and section 83A of the BCEA create a statutory rebuttable presumption that a person is an employee if certain factors are present. These factors include the following:

• the manner in which the person works is subject to the control or direction of another person.
• in the case of a person who works for an organisation, the person forms part of that organisation.
• the person is economically dependent on the other person for whom he or she works or renders services.

The statutory presumption that a person is an employee only applies to individuals earning below the statutory earnings threshold which is currently R 205 433.30 per annum.

The Labour Court (LC) and Labour Appeal Court (LAC) have dealt with cases where individuals in volunteer arrangements claimed that they were employees. The LC and LAC held that both parties must have a clear intention to create a legally enforceable employment contract whether it be oral or in writing. In other words, a clear intention must be established before any conclusion can be made on the existence of an employment relationship. In analysing whether such an intention exists, our courts have looked at the following:

• the documents signed demonstrating the nature of either a volunteer or employment relationship.
• whether an organisation normally enters into employment contracts with a specific type of individual (within its organisation) claiming to be an employee.
• whether there is any contractual arrangement regardless of the form.

Conclusion

A volunteer earning below the statutory threshold could therefore claim that he/she is an employee based on certain factors being present.  The volunteer, claiming to be an employee, must however demonstrate that both parties had a clear intention to enter into a contractual arrangement and that this arrangement has the characteristics of an employment relationship.

It is therefore important that if employers want to make use of volunteers, the nature and terms of the relationship should be clearly set out in an agreement to avoid any uncertainty and disputes at a later stage.