This question has been raised on numerous occasions and there has been much debate on this since the implementation thereof on 1 January 2015. This question has now been laid to rest in the ground-breaking judgement by the Constitutional Court in the matter of Assign Services (Pty) Ltd vs NUMSA and Others (2018).
Section 198A (1) of the LRA, defines a “temporary service” as work for a client by an employee-
Section 198(A)(3) of the LRA, states that for the purposes of this Act, an employee-
On 26 July 2018, the Constitutional Court handed down judgement concerning the interpretation of Section 198(3)(b) of the Labour Relations Act and whether this “deeming” provision resulted in a sole employment relationship between a placed worker and a client or a dual employment relationship between a TES, a placed worker and a client.
The Constitutional Court held that the purpose of Section 198A must be brought into context with the right to fair labour practises in Section 23 of the Constitution and the purpose of the LRA as a whole.
The majority found that on an interpretation of Sections 198(2) and 198A(3)(b), for the first three months the TES is the employer and then subsequent to that time lapse the client becomes the sole employer.
In a Nutshell – the above aims to ensure that the provision of temporary employment services is truly temporary. Part of this protection entails that placed employees are fully integrated into the workplace as employees of the client after the three-month period. The employee automatically becomes employed on the same terms and conditions of similar employees, with the same benefits.
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