X is employed by Sisonke Security Agent (Pty) Ltd (hereinafter referred to as “SSA”) as a Grade C Security Guard. The nature of SSA’s business is procuring for or providing to clients, for reward, other persons who perform work for the client. Due to the nature of SSA’s business, X was placed on the premises of a client, Helmie Housing Estates (“the client”), in order to provide security services. X worked at the aforementioned premises for 4 months and was remunerated R6000.00 per month by SSA. On 10 January 2020, whilst rendering his services, X was removed from the client’s premises by SSA. In justifying the removal, SSA submitted that the client is unhappy with X’s services. In considering the given facts, can X refer an unfair dismissal dispute against SSA?
In terms of section 198A(1) of the Labour Relations Act 66 of 1995, as amended (“LRA”), a ‘temporary service’ means work for a client by an employee –
(a) for a period not exceeding three months;
(b) as a substitute for an employee of the client who is temporarily absent; or
Taking into consideration the above cited provision, it is evident that X was not rendering a temporary service as he worked for the client for more than three months, nor was he a substitute for an employee of the client who is and/or was temporarily absent.
Section 198A(3)(b) provides that an employee 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; and
Consequently, since X was not rendering a temporary service for the client, and as a result of section 198A(3)(b), he is and/or was deemed to be the employee of the client. In determining the meaning of “deeming” one should consider the Constitutional Court (“CC”) judgment in Assign Services (Pty) Ltd v NUMSA and others (CCT 194/17) ZACC 22 . The CC, amongst other things, held that the sole employment relationship provides greater protection than dual employers, as it provides certainty and security. The client becomes the sole employer for the purposes of the LRA.
It follows that X, when referring the unfair dismissal dispute to the CCMA, ought to cite the client as his employer and not SSA. The client is the employer for the purposes of “dismissals” because the latter is regulated by the LRA. It should be noted that section 198A does not apply to employees who earn above the minimum threshold, being R205 433.30 per annum (R17119. 44 per month).