Reference no: EM133815109

Question

Draft the Analysis of this award based on the Summary of Evidence and Argument below. Details of hearing and representation

1. This is the award in the matter between Tshiamo Keetse ("the applicant") and Retail Insight (Pty) Ltd ("the respondent"). Arbitration was convened on 4 September 2017 at the offices of the CCMA in Kakamas. The applicant represented herself. Melyn Carlinsky ("Carlinsky") the respondent's human resources officer represented the respondent. Documents were submitted into evidence and form part of the record. The hearing was conducted in English and digitally recorded. The issue to be determined

2. I must determine whether the applicant was an employee and, if so, whether she was dismissed and whether such dismissal was procedurally and substantively fair. The applicant sought to be compensated. The background to the dispute

3. The respondent is a marketing company whose core business is to promote and advertise on behalf of its clients. It employs approximately 37 employees. The applicant was "employed" as a promoter on 10 February 2017. The parties agree that the applicant was "employed" to service the Telkom campaign and that the campaign period ran from 10 February 2017 to 31 March 2017. The applicant's services were terminated on 3 March 2017. The applicant's case is that her termination on 3 March 2017 amounted to a dismissal and that the dismissal was procedurally and substantively unfair. The applicant sought to be compensated for the balance of the campaign. The applicant has not found alternative work and she is a student.

4. The parties agree that the applicant (and the rest of the team) where engaged through the medium of a WhatsApp chat group. No formal interviews were held and all arrangements were agreed on a verbal basis or agreed on a WhatsApp chat. The applicant was not required to visit the respondent's offices. It is undisputed that the applicant was required to render a service for four hours every day of the week and for six hours over the weekend. The applicant and the rest of the team handed out advertising flyers at designated locations (which the respondent determined). The hours of work were also determined by the respondent. The applicant was required to "work" for twenty hours per week and twelve hours over the weekend. It was the applicant's case that she was employed in terms of an employment relationship and that she was appointed at the rate of R 65.00 per hour. The applicant conceded that she was eventually paid for all the time she worked.

5. The respondent denied that the applicant was an employee. It was the respondent's case that the applicant was a freelance promoter and all promoters were recruited on this basis. If the applicant is to be regarded as an employee, her services were terminated on account of her conduct. Payment was made via a gift card. Summary of evidence and argument The Applicant's Evidence

6. The applicant testified. In respect of the existence of an employment relationship, it was the applicant's evidence that although there were no benefits associated with the employment relationship, she was subjected to the respondent's control. The respondent regulated her hours of work, she completed time sheets and the respondent's promotion specialist, Itumeleng Selepi ("Selepi") visited her on site. She wore promotional clothing supplied by the respondent with the purpose of advertising for the client. She only provided services to the respondent, particularly as she was a student.

7. In relation to the dismissal, it was the applicant's evidence that the problem started when the respondent did not make a payment as promised (after the initial two-week period). This caused the applicant to visit the respondent's office and meet with the promotional manager, Nicole Killian ("Killian") on 1 March 2017. Killian promised to provide the applicant (and the others) with a contract and the outstanding monies owed. She guaranteed that payment would be made by 3 March 2017. This promise never materialised. The applicant conceded that she (and the others) walked off the job on 3 March 2017. At some stage, later in the day an initial payment was made. By the following day, the full outstanding payment was received. On 4 March 2017, the applicant (and the others) were removed from the WhatsApp chat group. This meant that the applicant was no longer required for the campaign despite an expectation that she would be part of the campaign until 31 March 2017. It was the applicant's evidence that the respondent did not give her an explanation as to why she was removed from the campaign. The Respondent's Evidence

8. Melyn Carlinsky ("Carlinsky") the respondent's human resources officer, testified in support of the respondent's case. She denied that the respondent concluded an employment relationship with the applicant. The applicant was not required to report to the respondent's office and was recruited through an informal process. She was recruited via the chat group.

9. The reason that the applicant was removed from the group related to the applicant's conduct. Carlinsky described the applicant's conduct (resulting from the late payment) as unprofessional, disrespectful and intolerable. She threatened to toyi-toyi and threatened to protest outside of the respondent's offices. This conduct was in contrast to the respondent's standards. In this respect, I was referred to the standards expected from promoters.

In particular, I was referred to an unsigned contract of employment document (which forms part of the record). This evidence supported the respondent's case that the applicant was expected to adhere to the respondent's standards of ethical and professional behaviour. In essence, it was the respondent's case that the applicant was removed from the campaign as she did not meet the standards required with due regard to her conduct when she was not paid on time and with due regard to her threat to down tools. I was referred to an email and affidavit on record that confirmed the respondent's version. The email and affidavit were from Selepe. In this correspondence, Selepe stated that "they made threats to toyi toyi outside the company" and that the applicant's contract was "cancelled due to her conduct". The applicant was well aware of the respondent's rules and expected conduct. This was discussed at the initial briefing. ANALYSIS OF EVIDENCE AND ARGUMENT AWARD And case law.