Is a candidate attorney an employee?
16 Mar 2016
What is an employee?
I recently read a letter titled the ‘Protection of candidate attorneys’ and it made me wonder whether article clerks / candidate attorneys and the agreements they enter into with principals, fall under the definition and protection of the Labour laws.
Let’s start by looking at the definition of a contract of employment and an employee. A contract of employment is a “reciprocal contract in terms of which an employee places his services at the disposal of another person or organisation, as employer, at a determined or determinable remuneration in such a way that the employer is clothed with authority over the employee and exercises supervision regarding the rendering of the employee’s services”. The Constitutional right to fair labour practices is enshrined in the framework of the Labour Relations Act, No 66 of 1995 (LRA). Section 213 of the LRA defines an employee as
“(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any manner assists in carrying on or conducting the business of an employer.”
Relationship between Principal and Candidate Attorney
The definition of an employee at face value implies that the employer’s legal obligations begin on the day that the employee begins work. In Whitehead vs Woolworths (Pty) Ltd (1999 20 ILJ 2133) the court found that a party to a contract of employment who has not yet commenced employment is not an employee for the purposes of the LRA. However despite this, in Wyeth SA (Pty) Ltd vs Manqele (People Dynamics, September 2003 page 39) the Labour Appeal Court upheld earlier decisions of the CCMA and Labour Court and found that the Applicant was deemed to be an employee the moment when the employment contract was signed. Notwithstanding the two opposing decisions by different benches of Labour Appeal Court Judges, an employment relationship is the fundamental point of reference for determining the nature and extent of employers’ rights and obligations towards their employees.
Section 1 of the Attorneys Act No. 53 of 1979 describes a “candidate attorney” as “any person bound to serve under articles of clerkship”. The requirement is that articles of clerkship should be entered into in writing, registered and be served under the supervision of the Law Society as demanded by the Legislature and the profession to ensure that candidate attorneys are given proper training by principals that are in good standing with the Society.
The relationship of principal and candidate attorney under a contract of articles of clerkship is assumed to begin only once such a contract is registered with the Law Society. It is regarded as a sui genesis (sic) statutory relationship governed by the provisions of the Attorneys Act No. 53 of 1979 and therefore thought to fall outside the scope of the Labour Relations Act 1995. The question to then ask is the relationship between the candidate attorney and principal an employment relationship before such a contract is registered? The reason why this question is important is to determine what recourse an article clerk would have should the principal decide not to register or terminate the candidate attorneys services prior to a contract being registered.
Disputes between Principal and Candidate Attorney
Every worker has the right not to be unfairly dismissed. According to the LRA there are only three reasons for dismissal that are ‘fair’, namely, the conduct of the employee, capacity of the employee (ability to do his job) or operational requirements of the business (retrenchment). And even if you dismiss with due cause, if you don’t follow the correct procedure, the matter can end up at the CCMA. When terminating the services of candidate attorneys, the Attorneys Act does not require the principal attorney to seek the leave either of the High Court or the Law Society before terminating or cancelling the contract of articles. The Law Society only requires of the principal attorney to notify them in writing.
The Law Society has the authority to resolve contractual disputes between the principal and candidate attorney. Normally a mediation/conciliation meeting would be held to resolve the dispute and these disputes are then tabled at a council meeting of the society but the Law Society does not have the authority to direct the parties to either cancel or continue with the contract of articles of clerkship, if it is not related to unprofessional conduct. Where to then? The High Court has no jurisdiction in respect of unfair dismissal, it only has jurisdiction in respect of wrongful dismissals.
So is it safe to say that if the Law Society cannot resolve the dispute then the candidate attorneys’ cause of action is one of wrongful dismissal? The High Court has jurisdiction but if it’s unfair dismissal, then either the Labour Court or the CCMA has jurisdiction depending on the reason for his / her dismissal.
To help determine whether an employment relationship exists, one must have regard to the six factors or guidelines which Joubert J.A. listed in Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) at 62. The six indicia listed by Joubert J.A. are the following:“
- The object of the contract of service is the rendering of personal services by the employee (locatur operarum) to the employer (conductor operarum).
- According to a contract of service the employee (locatur operarum) is at the beck and call of the employer (conductor operarum) to render his personal services at the behest of the latter.
- Services to be rendered in terms of a contract of service are at the disposal of the employer who may in his own discretion decide whether or not he wants to have them rendered.
- The employee is in terms of the contract of service subordinate to the will of the employer.
- A contract of service is terminated by the death of the employee whereas the death of the parties to a contract of work does not necessarily terminate it.
- A contract of service also terminates on expiration of the period of service entered into while a contract of work terminates on completion of the specified work or on production of the specified result.”
By taking into account the aforesaid and the meaning of employee in sec 213 of the LRA, is the definition broad enough to conclude that a contract of articles of clerkship does produce an employment relationship as contemplated by the LRA? In the 2013 June edition of De Rebus in relation to the‘Protection of candidate attorneys’ letter, Thinus Grobler, director, Law Society of the Northern Provinces stated the following: “In addition to the formal relationship between a principal and a CA under the Attorneys Act, the provisions of the Basic Conditions of Employment Act 75 of 1997 also apply and a CA can therefore not be prohibited from initiating proceedings against the principal in terms of the labour legislation, as their relationship is also one of employer and employee.(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)