In recent case law (review of arbitration) the court concluded the following in:

Mzukwa v Commission for Conciliation Mediation and Arbitration and Others [2024] LC (25 Jan
2024):

This is an opposed review to set aside an arbitration Award. The Commissioner started with the following:

“The applicant did not prove that AFMS is a TES and she is not entitled to the relief sought.” The relief sought at the arbitration as recorded by the Commissioner and evident from the transcript of the arbitration was:
“COMMISSIONER: The issue really is that the applicant’ s arguing that she is employed by a temporary employment service. She works as a switchboard operator at, stationed at the National Prosecuting Authority, as far as I understand it, and she is arguing that she has been employed by a labour broker for a very long time I think you said since 2013.

Taking the above into consideration on what relief is sought, the court refers to the following case law:

In Victor & others v Chep SA the Court had this to say:

“[37] The first question in deciding if a company is a TES in terms of s 198(1) of the LRA is whether it has provided other persons to a client for reward. Where workers are brought to the client by a third party to perform work at its premises, such normally will be at least an indication that the workers were procured to work for the client, especially if the client retains overarching control over the work process and can determinewhether a worker continues to perform his or her work at all……

[40] This ’entails an examination of the substance of the relationship between the client and the workers. The commissioner understood this to oblige him to consider (i) the nature of the SLA; (ii) the degree of control exercised over C-Force and the workers by Chep; and (iii) the degree that the workforce is integrated into Chep’s workplace and organisation.

[41] While the SLA requires C-Force to attend to the staffing and management of the plant and the workforce, as mentioned earlier, other provisions of the SLA give Chep an over-riding oversight, supervisory and disciplinary authority.”

• It was not disputed by the parties before the Commissioner that the employee had been provided by AFMS in mid-2013 as a Switchboard Operator to the NPA (the employer).

[69] 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 employment benefits, the same prospects of internal growth and the same job security that follows.

*NB NB NB: The three month period above is crucial to understanding the TES and applying same in the workplace. Please refer to the outlined table as attached hereto.

The Court found that the Commissioner did not consider
(i) the nature of the SLA;
(ii) the degree of control exercised by the employer over ATMS and its workers in terms of the SLA and
(iii) the degree that the employee was integrated into the employer’s workplace and organisation.

The Order made:
It was found that:

• The employer is a “temporary employment service” (“TES”) in terms of section 198A of the Labour Relations Act.
• The employee is deemed to be an employee of the employer (NPA) in terms of Section 198A (3) (b) (i) and (ii) of the Labour Relations Act with effect from October 2015.
• The employee was be compensated in an amount equivalent to the difference between the remuneration (including benefits), that the NPA paid to its switchboard operators and the remuneration that she was paid by AFMS over this period.

It is clear from the above that one cannot merely assume that an employee is part of the TES and might be deemed to be an employee of the company that TES provided to.