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[2013] ZALCD 35
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Universal Church of The Kingdom of God v CCMA and Others (D348/12) [2013] ZALCD 35; [2014] 3 BLLR 295 (LC); (2014) 35 ILJ 1678 (LC) (27 November 2013)
THE
LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
REPORTABLE
CASE
NO: D 348/12
In
the matter between:
UNIVERSAL
CHURCH OF
THE Applicant
KINGDOM
OF GOD
and
CCMA First
Respondent
COMMISSIONER
L
SULLIVAN Second
Respondent
M
J
MYENI Third
Respondent
Heard:
8 November 2013
Delivered:
28 November 2013
Summary:
Pastor held to be employee of church.
JUDGMENT
Steenkamp
J
Introduction
[1]
Is a pastor who signed a document that he is in the voluntary service
of a church an employee or not?
[2]
The
third respondent was a pastor of the applicant, the Universal Church
of the Kingdom of God. He claims that he was dismissed
in December
2011. He referred an unfair dismissal dispute to the CCMA
[1]
.
The church raised a point
in
limine
that the pastor was not an employee. The arbitrator disagreed. The
church wishes to have that award reviewed and set aside. The
arbitrator also found that the pastor’s dismissal was fair. The
parties agreed that I should first decide whether the finding
that
the pastor was an employee, is reviewable. If so,
caedit
questio.
If not, the parties will return to court to argue whether the
arbitrator’s further finding - that the dismissal was unfair
-
is reviewable.
[3]
For
the reasons that follow, I have come to the conclusion that the award
is not reviewable. In my view, the arbitrator correctly
found the
pastor to be an employee. In doing so, I distinguish the earlier
judgment of this Court in
Church
of the Province of South Africa (Diocese of Cape Town) v CCMA
[2]
;
but in doing so, I bear in mind that that judgment was handed down
before the addition of section 200A to the Labour Relations
Act.
[3]
Background
facts
[4]
Mr Myeni, the third respondent, became a
trainee pastor in the church in 1998. He only signed a document
titled “Declaration
of Voluntary Service” in 2010,
although he had been ordained as a pastor by then.
[5]
The
pastor was ordained in 2004. Mr
Hitchings
submitted that he was never consecrated.
[4]
However, there was no direct evidence in support or against this
assertion in the arbitration. At best, the church’s
representative
put the following to him in cross-examination:
“
You
were a volunteer assistant helper for two years. That is your
evidence there. You became a trainee or auxiliary pastor in
1998
January
. Okay, you were not a
consecrated pastor
then
and you started receiving your stipend in 1998 as well. - Yes.
Okay.
I just want to confirm. You were asked the question of what you think
your duties are and you said your duty is to preach
the gospel of God
throughout the world. Is that correct? - Yes.
As
a pastor. Okay. You testified that you were
ordained
or consecrated.
- Yes.
In
2004, I think it is 2006. - 2006.”
[6]
It is therefore not clear from the
arbitration record whether the pastor had been consecrated or not. It
is common cause that, at
the very least, he had been ordained. But
the “Declaration of Voluntary Service” only refers to the
position of a “trainee
pastor”. The declaration states,
inter alia:
“
I
am volunteering as a trainee pastor at the Universal Church of the
Kingdom of God (hereinafter referred to as the “Church”).
I
am fully aware that the Bishop and the Leadership of the Church are
entrusted by God with the appointment for approval or removal
of
trainee pastors and irrevocably submit myself to their authority.
The
Bishop and the Leadership of the Church are, at any time during my
voluntary training period, entitled and obliged to decide
on my
suitability as a trainee pastor and therefore reserve the sole right
of summarily terminating my training for this or any
other reason.
My
trainee position was accepted conditional upon my dedication to
developing my spiritual maturity and practical experience, to
the
extent that
I
would be eligible for a future appointment as a consecrated pastor or
senior pastor.”
During
the entire period of my training programme to date, and henceforth,
I
always understood that:
[7]
At the time that his services were
terminated, the pastor was, at the very least, ordained. On the
evidence before the arbitrator,
I doubt that he could still be
considered to be in training. Yet the Declaration must be considered,
together with all other factors,
to decide whether he was an employee
or not. There is no evidence that he signed a further contract of
employment or other agreement
that superseded the Declaration.
The
applicable test
[8]
Mr
Mfungula
argued that the application for review must be tested against the
reasonableness test set out in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[5]
.
However, as this court has pointed out previously
[6]
,
it is bound by the decision of the Labour Appeal Court in
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd &
others
[7]
,
in which the LAC held that, in regard to a commissioner's finding on
jurisdiction, the question is not whether the commissioner's
finding
was reasonable but whether on the facts the applicant was an
employee. The basis of this approach, as Van Niekerk J pointed
out in
Workforce
Group,
[8]
is
that a ruling on jurisdiction made by the CCMA is made for
convenience - the CCMA is a creature of statute and cannot decide
its
own jurisdiction. Whether the CCMA has jurisdiction is a matter for
this court to decide. In other words, the issue before
the court is
whether, objectively speaking, there existed facts which would give
the CCMA the jurisdiction to entertain the dispute,
ie that
established that the pastor was an employee of the church as defined
by s 213 of the LRA. That was indeed the first question
posed by the
church at the arbitration. If so, the further question is whether the
arbitrator reasonably concluded that his dismissal
was unfair. The
parties agreed that the second question will stand over for later
determination.
Evaluation
/ Analysis
[9]
Mr
Hitchings
relied strongly on the case of
Church
of the Province of South Africa (Diocese of Cape Town) v CCMA
[9]
for his argument. But at the outset, it must be noted that that case
was decided before the legislature introduced s 200A of the
LRA in
2002.
[10]
And although the judgment in
Salvation
Army (South African Territory) v Minister of Labour
[11]
was
handed down on 2 September 2004, the learned acting judge in that
matter did not refer to section 200A.
[10]
Section 200A reads as follows:
“
200A.
Presumption as to who is employee.—(1) Until the contrary is
proved, a person who works for, or renders services to,
any other
person is presumed, regardless of the form of the contract, to be an
employee,
if any one or more of the
following factors are present:
(a)
the manner in which the person works is subject to the control or
direction of another person;
(.
b
)
the person’s hours of work are subject to the control or
direction of another person;
(c)
in the case of a person who works
for an organisation, the person forms part of that organisation;
(d)
the person has worked for that other
person for an average of at least 40 hours per month over the last
three months;
(e)
the person is economically dependent
on the other person for whom he or she works or renders services;
(f)
the person is provided with tools of
trade or work equipment by the other person; or
(g)
the person only works for or renders
services to one person.
(2)
Subsection (1) does not apply to any
person who earns in excess of the amount determined by the Minister
in terms of section 6 (3)
of the
Basic Conditions of
Employment Act.
(3)
If a proposed or existing work
arrangement involves persons who earn amounts equal to or below the
amounts determined by the Minister
in terms of section 6 (3) of the
Basic Conditions of Employment Act,
any
of the contracting parties may approach the Commission for an
advisory award on whether the persons involved in the arrangement
are
employees.
(4)
NEDLAC must prepare and issue a Code of
Good Practice that sets out guidelines for determining whether
persons, including those
who earn in excess of the amount determined
in subsection (2) are
employees.
[S.
200A inserted by s. 51 of Act 12 of 2002.]”
[11]
There
is no dispute that the pastor earned less than the prescribed
threshold.
[12]
He was paid R1875, 00 per week, ie about R97 500 per year. He was
also given accommodation that was valued at R4 500 per month
or R54
000 per year. The Code of Good Practice was published on 1 December
2006
[13]
,
i.e. after the
CPSA
and
Salvation
Army
judgments. This Court has to determine the question whether the
pastor was an employee with regard to s 200A and the Code, as the
arbitrator did. In terms of ss 203(3) and 203(4) of the LRA, any
person - including the CCMA arbitrator and this Court - must take
the
Code into account for the purposes of deciding if the pastor was an
employee.
[12]
Section 200A establishes a rebuttable
presumption as to who is an employee for the purposes of the LRA -
one that did not exist
at the time of the
CPSA
judgment. In order to be presumed an employee, an applicant must
demonstrate that he or she works for or renders services to the
person or entity cited as the employer; and that any one of the seven
factors listed in s 200A is present in their relationship.
The
presumption applies regardless of the form of the contract.
Accordingly, the arbitrator - and the Court -- must evaluate the
evidence concerning the actual nature of the relationship.
[13]
In this case, there clearly was a
relationship between the church and the pastor. The pastor rendered
services - quite literally,
in the form of devotional services - in
the name of the church. At least the following factors listed in s
200A were present in
the relationship:
13.1
The manner in which the pastor works was
subject to the control or direction of the church. He had to complete
a weekly work schedule.
If he was unable to conduct sermons, he
needed to report to his senior, the regional pastor.
13.2
The pastor’s hours of work were
subject to the control or direction of the church. He had to conduct
three or four sermons
per day.
13.3
The pastor formed part of the Universal
Church of the Kingdom of God. He did not present sermons in the name
of any other church
or simply on his own, albeit “in the name
of God”.
13.4
The pastor worked for the church for at
least 40 hours per month.
13.5
The pastor was economically dependent on
the church. He earned no other income.
13.6
The pastor only worked for or rendered
services to the church.
[14]
Has the church nevertheless been able to
rebut the presumption that the pastor was its employee?
[15]
Mr
Hitchings
attempted to do so with reference to the
CPSA
case. In this regard, he noted that the relationship between the
pastor and the applicant, the Universal Church of the Kingdom
of God,
had the following in common with that between the priest and the
Anglican Church in
CPSA
[14]
-.
15.1
A priest in the CPSA receives a stipend,
like the pastor;
15.2
A priest receives a housing allowance,
while the pastor received free accommodation for him and his family;
15.3
Tax was deducted for both;
15.4
A priest’s license may be revoked
if he is guilty of a disciplinary offence;
15.5
The pastor’s duties and
obligations were defined, as were those of a priest.
[16]
The
ratio
of the decision in
CPSA
is that the arbitrator determined the issue on the basis that there
was a contract between the parties; but he did not determine
if that
was in fact the case. That, the court found, was a reviewable
irregularity.
[15]
And the court further found that, in that case, there was no
intention to create an employment contract.
[16]
[17]
But it must be stressed, once again,
that the
CPSA
case was decided before
the legislature intervened to create the presumption of who is an
employee in s 200A; the acting judge
in the
Salvation Army
case did not consider the presumption; and both cases were decided
without the benefit of the guidance now provided by the Code
of Good
Practice. Also, section 200A specifically provides that the
presumption applies “regardless of the form of the contract”.
[18]
Neither
legal representative referred to the development of the English case
law subsequent to
CPSA,
which was based largely on the English case law at the time. In
CPSA,
the court relied on the following English cases:
Davies
v Presbyterian Church of Wales
[17]
;
Diocese of Southwalk v Corker
[18]
;
In re: National Insurance Act 1911; In re: Employment of Church of
England Curates
[19]
;
and
President
of Methodist Conference v Parfitt
[20]
[19]
Since
then, the English law has developed over the last 12 years, as the
learned authors in
Harvey
on Industrial Relations and Employment Law
[21]
point
out:
“
The
law here has seen very considerable change in recent years. A member
of the clergy was traditionally regarded as an officeholder
(
Parker
v Orr
(1966) 1 ITR 488). Sometimes the reason given was that his or her
master is not amenable to the jurisdiction of the early courts;
or
more prosaically that the spiritual nature of the job is inconsistent
with a contract of employment. Also, it was submitted,
the role of
priest or minister of whatever denomination, acting as such,
necessarily involved such a degree of independent judgment
and
discretion that his or her relationship with the church or church
authorities could not be a contract of employment.
For
many years the case law applied these views. While there was nothing
to prevent there being an employment relationship in relation
to any
separate or extra duties, the ‘core’ duties of clergy did
not give rise to a contract of employment. A Methodist
Minister was
held not to be an employee of his church (
President
of the Methodist Conference vParfitt
[1984]
IRLR 141
,
[1984] ICR 176
, CA) and a similar result was reached by the
House of Lords in relation to a Church of Wales minister (
Davies
v Presbyterian Church of Wales
[1986] IRLR 194
,
[1986] ICR 280
, HL) who may have had rights in
relation to stipend and removal under the Church’s own rules
but could not claim employment
protection rights as an employee. A
curate in the Church of England was similarly categorised in
Diocese
of Southwark v Coker
[1997] EWCA Civ 2090
;
[1998] ICR 140
,
(1997) Times, 16
July, CA though arguably on slightly
different grounds that there is no actual rule against employment
status but that there is
a strong presumption against it (which had
not been displaced on the facts).
[22]
It therefore seemed that employment rights could only be extended to
clergy by amending legislation.
However,
that position was then altered by later cases.
[23]
This
traditional position started to change when the status of a Church of
Scotland minister was called into question; she accepted
that she was
not an ‘employee’ and so could not claim unfair
dismissal, but the House of Lords held that she
did
come within the wider statutory definition “more akin to the
‘work’ definition in the [Sex Discrimination Act]
1975 s
82 (under ‘a contract personally to execute any work or
labour’)
[24]
and so could maintain an action against the church for sex
discrimination:
Percy
v Church of Scotland Board of National Mission
[2005] UKHL 73
,
[2006] IRLR 195.
This decision deliberately did not
pronounce on employment status under ERA 1996 s 230, but shortly
afterwards the question arose
directly in
Stewart
v New Testament Church of God [
[2007] EWCA Civ 1004
;
2008]
IRLR 134
,
[2008] ICR 282
, CA where the Court of Appeal upheld the
judgement of the EAT that it
was
open
to a tribunal to find that the Minister of an American Church
operating in the UK was an ‘employee’ for the purposes
of
claiming unfair dismissal. Although the earlier case law (above) had
been hostile to such a conclusion..., The Court of Appeal
held that
there is no rule of law either way and that the indirect result of
Percy
was to leave the matter to tribunals as a question of fact. The
spiritual nature of the work may be a factor against an employment
relationship..., But in some cases... That may be outweighed by other
factors consistent with employment.”
[25]
[20]
In
President
of the Methodist Conference v Preston (formerly Moore)
[26]
the Court of Appeals held that a Methodist minister was an employee
and so able to claim unfair dismissal. The judgement went on
further
appeal to the UK Supreme Court. The Supreme Court handed down its
judgement earlier this year.
[27]
[21]
The Supreme Court in
Preston
allowed the appeal by majority of four to one (Lady Hale dissenting),
and held that Ms Preston - a superintendent minister in the
Methodist
church - was not an employee, but was serving as a minister “pursuant
to the lifelong relationship into which she
had already entered when
she was ordained”.
[22]
Lord Sumption, for the majority, used as
his starting point section 230 of the Employment Rights Act 1996,
that defines an employee
as someone who has entered into or works
under a contract of service or apprenticeship. It will be immediately
apparent that that
section is narrower than section 213 of the Labour
Relations Act, that includes under the definition of ‘employee’
-
“
any
other person who in any manner assists in carrying on or conducting
the business of an employer”.
[23]
Having
considered the judgments in
Coker,
Davies, Parfitt,
and
Percy,
Lord
Sumption came to the conclusion that the question whether a minister
of religion serves under a contract of employment can
no longer be
answered simply by classifying the minister’s occupation by
type: office or employment, spiritual or secular.
Nor, in the
generality of cases, can it be answered by reference to any
presumption against the contractual character of the service
of
ministers generally. He held:
[28]
“
The
primary considerations are the manner in which the minister was
engaged, and the character of the rules or terms governing his
or her
service. But, as with all exercises in contractual construction,
these documents and any other admissible evidence on the
parties’
intentions fall to be construed against the factual background.”
[24]
Having considered the facts of the
relationship between Ms Preston and the church, Lord Sumption held
that the question whether
an arrangement is a legally binding
contract depends on the intentions of the parties. The question is
whether the parties intended
the benefits and burdens of the ministry
to be the subject of a legally binding agreement between them.
“
Part
of the vice of the earlier authorities was that many of them
proceeded by way of abstract categorisation of ministers of religion
generally. The correct approach is to examine the rules and practices
of the particular church and any special arrangements made
with the
particular minister.”
[29]
[25]
In her dissent, Lady Hale pointed out
that there is nothing intrinsic to religious ministry which is
inconsistent with there being
a contract between the minister and the
church. It is normal for rabbis to be employed by particular
synagogue, for example. Priests
appointed in the Church of England
are now engaged on terms which expressly provide that there have the
right to complain of unfair
dismissal to an employment tribunal.
She
also pointed out that it is possible to hold an office and also to be
employed. An obvious example is University teachers, who
may hold the
office of (say) Professor at the same time as having a contract of
employment.
[30]
[26]
In short, then, the UK Supreme Court has
accepted that a minister can be an employee; but the question in each
case must be answered
according to the manner in which the minister
is engaged and the rules governing his or her service. This depends
on the intentions
of the parties and, as with all such exercises, any
such evidence of the parties’ intentions must be examined
against the
factual background.
[27]
In
the earlier South African case of
Schreuder
v Nederduitse Gereformeerde Kerk, Wilgespruit
[31]
that is what Basson J did. The court considered the “beroepsbrief”
setting out the minister’s duties; his duties
with regard to
home visits (“huisbesoek”) and sermons; his remuneration
in the form of a “traktement”
[32]
;
and the fact that he fulfils a “calling”, does not
detract from him being an employee. The court concluded:
[33]
“
In
die lig van hierdie getuienis is ek oortuig dat die bedoeling van die
beroepsbrief is om kontraktuele verpligtinge in die vorm
van ‘n
dienskontrak te skep tussen die predikant en sy of haar gemeente.”
[28]
More
recently, the Labour Court again considered a similar relationship in
Rev
Petrus v Evangelical Lutheran Church & others
[34]
The court reiterated that each matter must be considered on its own
merits and its own facts to establish if the parties intended
an
employment relationship. And importantly, it added
[35]
that there need not be a written contract to establish an employment
relationship. That distinguishes the position in our law from
that
expressed in the English cases considered above. This view was
expressed,
inter
alia,
in
Discovery
Health Limited v CCMA,
[36]
where the Court said the following:
Taking
into account the provisions of s 23(1) of the Constitution, the
purpose, nature and extent of relevant international standards
and
the more recent interpretations of the definition of ‘employee’
by this court, I do not consider that the definition
of ‘employee’
in s 213 of the LRA is necessarily rooted in a contract of
employment. It follows that the person who
renders work on a basis
other than that recognised as employment by the common law may be an
‘employee’ for the purposes
of the definition.’
[29]
On
the facts of the matter, the court in
Petrus
concluded that the parties intended an employment relationship, even
though there was no signed contract of employment.
[37]
[30]
The
absence of a contract of employment does not mean that no employment
relationship could be established. As Prof Paul Benjamin
[38]
has noted, the definition in s 213 of the LRA does not use the
language of contract. And when s 200A creates a rebuttable
presumption
“regardless of the form of the contract”,
that does not, in my view, presuppose the existence of a written
contract.
The Employment Relationship Recommendation, 2006, of the
International Labour Organisation states that ‘a disguised
employment
relationship occurs when the employer treats an individual
as other than an employee in a manner that hides his or her true
legal
status as an employee’.
[39]
[31]
It remains to reconsider the
relationship between the pastor, Myeni, and the church in the case
before me on the particular facts
of this case and in the light of
the provisions of the LRA.
[32]
As set out above, almost every
presumption outlined in s 200A applies to this relationship:
32.1
The manner in which the pastor works was
subject to the control or direction of the church.
32.2
The pastor’s hours of work were
subject to the control or direction of the church.
32.3
The pastor formed part of the Universal
Church of the Kingdom of God.
32.4
The pastor worked for the church for at
least 40 hours per month.
32.5
The pastor was economically dependent on
the church. He earned no other income. And the church deducted pay as
you earn (PAYE) and
Unemployment Insurance Fund payments from his
remuneration that it called a “stipend”.
32.6
The pastor only worked for or rendered
services to the church.
[33]
It is also significant that, at the
arbitration, the church was represented by Mr Coetzee, an official of
an employer’s organisation
of which the church is a member,
namely the “General, Domestic & Professional Employers
Organisation”. And on the
employee tax certificate (IRP5)
submitted to SARS the church is indicated as the employer, together
with its PAYE and UIF reference
numbers.
[34]
Mr Coetzee stated at arbitration that
the pastor “was called to a disciplinary hearing for a
disciplinary meeting in terms
of the church’s rules. The
applicant [i.e. the pastor] was found guilty of serious forms of
misconduct...”. This is
hardly indicative of a relationship
other than an employment relationship. The same goes for the
assertion by the church’s
witness, Mr Tshabalala, that the
pastor’s services can be terminated if he contravenes the
church’s regulations; and
that the pastor fell under his
supervision.
Conclusion
[35]
On
a conspectus of all the facts, I am not persuaded that the church has
succeeded in rebutting the presumption contained in s 200A
of the
LRA. To paraphrase Lady Hale in
Preston
[40]
,
everything in this relationship looks like an employment
relationship. If it looks like a duck, walks like a duck and quacks
like
a duck, it probably is one.
Costs
[36]
The issue of costs will be decided at
the hearing of the review application on the merits of whether the
pastor’s dismissal
was fair.
Order
I
find that the pastor was an employee of the church. The question
whether the award that his dismissal was unfair and that he should
be
reinstated, is reviewable, stands over for later determination.
Steenkamp
J
APPEARANCES
APPLICANT:
BD Hitchings
Instructed
by Martins Weir-Smith Inc.
THIRD
RESPONDENT: Attorney
Mfungula of
Noxaka Mfungula attorneys.
STEENKAMP
J
[1]
Is a pastor who signed a document that he is in the voluntary
service of a church an employee or not?
[2]
[2001] 11 BLLR 1213
(LC); (2001) 22 ILJ 2274 (LC).
[3]
Act 66 of 1995 (the LRA).
[4]
To be ordained means to be appointed or admitted to the ministry of
the church. To be
consecrated
appears to be something more - it is to dedicate the pastor to
religious service;
although
the Shorter Oxford English Dictionary equates the verb “consecrate”
to “ordain (a
bishop
etc) to office”.
[5]
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC); [2007] 12 BLLR 1097
(CC).
[6]
Eg Workforce Group (Pty) Ltd v CCMA & others (2012) 33 ILJ 738
(LC) para [2]; Melomed
Hospital
Holdings Ltd v CCMA & others (2013) 34 ILJ 920 (LC) para [44];
Parliament of the Republic of South Africa v NEHAWU
obo members &
others [2011 ] 9 905 (LC) para [15],
[7]
(2008) 29 ILJ 2218 (LAC).
[8]
Ibid.
[9]
[2001] 11 BLLR 1213
(LC); (2001) 22 ILJ 2274 (LC).
[10]
That section came into effect on 1 August 2002: Government Gazette
25515. The CPSA
judgment
was handed down on 7 September 2001. It does not appear to have gone
on appeal.
[11]
[2004] 12 BLLR 1264 (LC).
[12]
Currently R 193 805, 00 per year.
[13]
GenN 1774 in Government Gazette 29445.
Supra,
with reference to the features outlined in para [7],
[15]
CPSA supra para [12],
[16]
Ibid paras [34] - [35],
[17]
[1986] 1 All ER 705 (HL);
[18]
[1997] EWCA Civ 2090
;
[1998] ICR 140
(CA).
[19]
[1912] Ch 563.
[20]
[1984] ICR 176.
[21]
Brennan et al, Harvey on Industrial Relations and Employment Law
(LexisNexis, Issue 223,
August
2012) paras [113] - [115],
[22]
[It should be noted that, in South African law, the presumption in s
200A goes the other way:
i.e.
in favour of the relationship being that of employment. The cases
outlined in this paragraph,
before
the further developments discussed in Harvey, are those that the
court in CPSA relied
on],
[23]
My underlining.
[24]
Compare this to the wider definition of ‘employment’ in
s 213 of the LRA, i.e. “in any manner
assists
in carrying on or conducting the business of an employer”.
[25]
Harvey also notes that, through legislation, Church of England
clergy are now given the right
to
claim unfair dismissal before a tribunal.
[26]
[2012] IRLR 229
, CA.
[27]
President of the Methodist Conference v Preston
[2013] UKSC 29
, 15
May 2013.
[28]
Preston
[2013] UKSC 29
para 10.
[29]
Preston para 26.
[30]
Preston paras 36-37.
[31]
(1999) 20 /LJ 1936 (LC).
[32]
Defined as a “vaste bedrag op gereelde tye uitbetaal aan ‘n
persoon wat ‘n amp beklee,
dikwels
van ‘n predikant se vergoeding gebruik” (Verklarende
Handwoordeboek van die
Afrikaanse
Taal, 1994) - i.e. an amount paid to a person who occupies an
office.
[33]
Schreuder (supra) at para [20],
[34]
Case no JR 804/10, unreported, 29 June 2012.
[35]
Petrus (supra) at paras [17] - [18],
[36]
(2008) 29 ILJ 1480(LC) at para [51]. See also ‘Kylie’ v
CCMA & others
2010 (4) SA 383
(LAC);
(2010) 31 ILJ 1600 (LAC);
[2010] 7 BLLR 705
(LAC) paras 21-27; and
Southern Sun
Hotel
Interests (Pty) Ltd v CCMA & ors (2011) 32 ILJ 2756 (LAC) paras
27-29.
[37]
The judgment did not go on appeal.
[38]
Paul Benjamin, “An accident of history: Who is (and who should
be) an employee under
South
African labour law” (2004) 25 ILJ 787 at 788.
on
Article
4(b) of Recommendation 197 of 2006, referred to in the Code of Good
Practice: Who
is
an employee.
[40]
Supra para 49.