‘Deemed’ to be an employee: Adopting the teleological interpretation of statutes

• Jurisdiction: South Africa
• Published date: 20 August 2019
• Citation: (2018) 30 SA Merc LJ 416
• Pages: 416-433
• Date: 20 August 2019
• Author: Marius van Staden

‘DEEMED’ TO BE AN EMPLOYEE: ADOPTING

THE TELEOLOGICAL INTERPRETATION OF

STATUTES

MARIUS VAN STADEN*

Doctoral Candidate, University of Pretoria

STEFAN VAN ECK**

Professor, Department of Mercantile Law, University of Pretoria

Abstract

Recent legislative amendments to the Labour Relations Act 66 of

1995 have introduced so-called ‘deemed’ provisions of employment

to assist in the identif‌ication of the parties to triangular

employment relationships. This article explores the signif‌icance of

statutory interpretation in identifying the parties to the

employment relationship and the approach of the judiciary in

interpreting the term ‘deemed’. The ‘teleological model’ of statutory

interpretation is described and the interpretive approach of the

Labour Appeal Court is assessed against this model. Teleological

interpretation requires that legislative provisions be interpreted to

advance their purpose in light of constitutional values. The

interpretation that best advances constitutional values must be

preferred. In determining such a constitutionally appropriate

meaning of the provision, the courts must also have regard to the

textual, contextual, teleological, historical, and comparative

elements in which the provision occurs. In a recent decision, the

Labour Appeal Court failed to consider key constitutional values,

the history of the legislative provision, and the comparative law

dimension in which the relevant legislative provision is found. The

court made little attempt to understand the historical circumstances

that led to the adoption of the statutory provision and considered

no comparative experience.

* LLB LLM (UJ). Lecturer, Department of Public Law, University of Johannesburg. Orchid

ID https://orcid.org/0000–0002–7515–1423. This article is an adapted version of a part of my

doctoral thesis at the University of Pretoria entitled Identification of the Employment

Relationship: An Appraisal of the Teleological Interpretation of Statutes.

** BA LLB LLD (Pret). Professor of Labour Law, Department of Mercantile Law,

University of Pretoria. Chair of the African Labour Law Society and the Centre for Insolvency,

Labour and Company Law. Orcid ID orcid.org/0000–0002–1563–6736.

416

(2018) 30 SA Merc LJ 416

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I INTRODUCTION

The purpose of section 198(2) of the Labour Relations Act (the LRA)

1

is

to identify the true employer of a placed agency worker in the triangular

employment relationship. Is the ‘temporary employment service’ (the

TES) or the ‘client’ the employer under the LRA? This section of the LRA

was conceived as the conventional tests of employment, both common-

law and statutory, do not cater adequately for the circumstances of TES

employees. The section provides, inter alia:

‘(2) For the purposes of this Act, a person whose services have been

procured for or provided to a client by a temporary employment

service is the employee of that temporary employment service, and

the temporary employment service is that person’s employer’

(emphasis added).

Section 198(2) is clear as to both wording and meaning. The TES, and

not the client, is the designated employer and, as such, bears the

corresponding responsibilities. Section 198A deals with the protection

of agency employees earning below a certain threshold

2

and states, inter

alia:

‘(3) For the purposes of this Act, an employee —

(a) performing a temporary service as contemplated in subsection

(1) for the client is the employee of the temporary employment

services in terms of section 198 (2); or

(b) not performing such temporary service for the client is —

(i) deemed to be the employee of that client and the client is

deemed to be the employer’ (emphasis added).

The LRA provides additional protection to employees earning below

the threshold and who work for the client for longer than three months.

They ‘must be treated on the whole not less favourably than an employee

of the client performing the same or similar work, unless there is a

justif‌iable reason for different treatment’.

3

They also become indef‌i-

nitely employed by the employer after a three-month period.

4

In

addition, the Minister of Labour may, subject to certain procedural

requirements, publish a notice regarding which categories of work

should be deemed a TES.

5

It is therefore clear that an inquiry into the

1

66 of 1995.

2

The current threshold is R205 433.30 per year.

3

Section 189A(5).

4

Section 189A(3)(b).

5

Section 189A(1)(c).

‘DEEMED’ TO BE AN EMPLOYEE 417

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