Why you must treat your interns as employees

Labour law expert Ivan Israelstam explains how trainees are seen as employees under the law.

With very few exceptions, anyone who works for any organisation is an employee. Section 213 of the Labour Relations Act (LRA) provides that an employee is anyone, other than an independent contractor, who works for another person or who assists in conducting the business of an employer. This definition gives the meaning of “employee” a very wide scope and omits only service providers who are external and truly autonomous.

Section 200A of the LRA states that, unless the contrary is proven and regardless of the form of the contract, a person is presumed to be an employee if any one of the following circumstances exist:

  • The manner in which the person works is subject to the direction or control of another person;
  • The person’s hours of work are subject to the direction or control of another person;
  • The person forms part of the organisation;
  • The person has worked for the other person for an average of at least 40 hours per month for the last three months;
  • The person is economically dependent on the other person;
  • The person is provided with tools of trade or equipment by the other person; or
  • The person only provides services to one person.

It might be argued that anyone doing work as a means of receiving training in their trade or profession would be defined as a learner and not as an employee. For example, the Skills Development Act appears to provide for special circumstances where people are signed up for learnerships and apprenticeships purely for purposes of advancing their learning and qualifications. Work contracts that clearly fall under the jurisdiction of either of these two acts may well not qualify as employment contracts.

However, any other trainee contracts are likely to be seen in law as employment contracts. In the case of Andreanis vs the Department of Health (2006, 5 BALR 461) Ms Andreanis was appointed as an intern at a state hospital. Four years later she was told to vacate her post as her internship period had come to an end. She claimed unfair dismissal as she believed that she was an employee and that the end of her internship was irrelevant to her employment status.

The employer claimed that Ms Andreanis was a trainee and not an employee and that the CCMA had no jurisdiction to hear a case brought by a non-employee. Also, Ms Andreanis had not been dismissed as her appointment had expired automatically when her internship period expired.

The arbitrator found that Ms Andreanis was indeed an employee in terms of the definition in Section 213 of the LRA and that the dismissal was unfair, ruling that the employer was to reinstate the employee with full back pay.

In the light of the above, employers are advised to ensure that all trainees (other than perhaps those with official learnerships) are treated as employees.