‘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
© Juta and Company (Pty) Ltd
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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