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Are volunteers protected?

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Are volunteers protected?

8th March 2016

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The assumption is often made that people who do volunteer work are not employees. They are appointed informally and their services are terminated without giving thought to the consequences. But are volunteers protected by labour legislation?

Take this example: Sarah is a member of a religious organisation and until recently worked as a volunteer at a branch office of the organisation that produces and prints literature for the parent organisation. Some of this is sold to generate income for the church. All volunteers are required to sign a vow of poverty. They live on-site where they receive free board and lodging and other services, e.g. laundry services. They also receive a small stipend to assist with certain necessary costs, but this was minimal. Sarah worked in the laundry until recently when the parent organisation took a decision to cut back on all their operations. Sarah and some of her colleagues were asked to leave the branch.No retrenchment procedures were followed and they were also not given notice of dismissal, severance pay or payment in lieu of notice.

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The question is simple: Was Sarah an ‘employee’ for purposes of the Basic Conditions of Employment Act (BCEA) and the Labour Relations Act (LRA)? In other words, was she entitled to be consulted and receive notice and severance pay? The answer to the question is a little more complicated, however.

That she is excluded from the provisions of the BCEA is clear, because Section 3 specifically provides that unpaid volunteers working for an organisation ‘serving a charitable purpose’ are excluded from the Act’s ambit. Religious organisations fall within this category. Interestingly, the section does seem to suggest that they are employees, but are nevertheless excluded from the Act, because it begins by stating that “(t)his Act applies to all employees and employers except unpaid volunteers …”. Her exclusion from the BCEA means that she was not entitled to receive notice, severance pay or payment in lieu of notice. 

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The LRA protects employees against unfair dismissal and unfair labour practices. Unlike the BCEA, the LRA does not specifically exclude charitable workers (Section 2). Although the courts have yet to decide the matter, there are several indications that volunteer workers are covered by the provisions of the LRA, at least if they are engaged in ‘business activities’ of an employer. (Note that the Act does not define ‘employer’).

First, both parts of the definition of ‘employee’ in the LRA are potentially broad enough to include someone like Sarah. The first part states that an employee is someone who renders services to an employer for remuneration. ‘Remuneration’ is defined in the LRA as ‘‘any payment in money or in kind, or both in money and in kind, made or owing to any person in return for that person working for any other person". It provides for any payment in money for a person working for the other person. This portion of the definition would be wide enough to include stipends payable to a volunteer, because such payments would be in return for the volunteer services rendered to the organisation. (Note that in terms of par 1 of the Fourth Schedule to the Income Tax Act, a ‘stipend’ as well as a ‘voluntary award’ are included as part of its definition of ‘remuneration’.) In addition, she is also receiving payment in kind with free accommodation and services.

But even if this part of the definition does not apply, e.g. because a stipend does not amount to ‘remuneration’, the second part of the definition’s only requirement is that the person must ‘assist in carrying on or conducting the business of an employer’. The nature of the business is not circumscribed. While the organisation’s purely charitable or religious activities might not constitute a ‘business’ (these are, arguably, public benefit and not ‘business’ activities) in Sarah’s case she was attached to a branch of the church that carried on a ‘business’ activity, i.e. producing and publishing religious literature for gain. The Code of Good Practice: Who is an Employee (in par 25) supports this interpretation, stating that unpaid workers who work for an employer ‘clearly’ fall under this category.

Further support for including Sarah under the definition of ‘employee’ can be found both in Section 200A of the LRA and the Constitution. Section 200A deals with the distinction between employees and independent contractors and states that, until the contrary is proved, anyone earning under the statutory earnings threshold is presumed to be an employee if one of a number of facts are present. In the case of unpaid volunteers many of these facts would be present, e.g. working under the direction of someone else. While the section is not directly in point, it does provide an aide to interpretation of the definition of ‘employee’.

Finally, the Constitutional Court has ruled that the LRA must be “purposively construed in order to give effect to the Constitution". Section 23(1) of the Constitution provides that ‘everyone’ has the right to fair labour practices. This right is not only limited to paid employees. It refers to everyone, and would therefore extend to volunteers such as Sarah. In the case of doubt, the courts will, in all likelihood, be giving the LRA (in this case the definition of ‘employee’) a ‘purposive’ interpretation and extend its protection to her and her dismissed colleagues.

Although Sarah’s example refers to a religious organisation, all employers should note that the fact that someone does not get paid for doing work for them does not automatically mean that they are not employees and therefore not entitled to protection under the LRA.

The implications are, potentially, far-reaching.

Written by Barney Jordaan for LabourWise

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