Using a locum tenens in private practice Prof Magda Slabbert and Dr Hennie Pienaar

1. Using a locumtenens in private practice Prof Magda Slabbert and Dr Hennie Pienaar

2. Locums • Locum = holding a place • Legal consequences????? ~ employee ~ independent contractor

3. Locums The Health Professions Act 56 of 1974 – Health Professions Amendment Act 29 of 2007 • Silent on the appointment of locums Sec 9 Ethical rules of conduct for practitioners • 6 months • Registered • Not suspended from practice

4. Locums Sec 18 * written contract * available to council No Case law Disciplinary action * fine * temporary suspension

5. Reality test Denel (Pty) Ltd v Gerber (2005) 26 ILJ 1256 (LAC) • Only relevant if there is no contract • Dispute The Labour Relations Act 66 of 1996 (S213) (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 (same for the BCEA)

6. Reality test • Rebuttable presumption (2002) – employee or not??? • Dispute – the applicant must demonstrate: (a) the locum worked for or rendered services to the person cited in the proceedings as their employee; and (b) any one of the 7 listed factors in the Acts is present in their relationship

7. The seven factors • The manner in which the person works is subject to the control or direction of another person; • The person’s hours of work are subject to the control or direction of another person; • In the case of a person who works for an organisation, the person forms part of the organisation; • The person has worked for that other person for an average of at least 40 hours per month over the last three months; • The person is economically dependent on the other person for whom he/she works or renders services;

8. The seven factors (cont) • The person is provided with tools of trade or work equipment by the other person; • The person only works for or renders services to one person. The fact that a locum satisfies only 1 of the 7 factors does NOT establish that he/she is in fact an employee BUT the onus falls on the principal as employer to lead evidence that the locum is not an employee but an independent contractor.

9. Threshold earnings • Presumption only applies to those earning less than the threshold • Determined from time to time by the Minister • Currently R183 000-00 p a (R15 500-00 per month) • Earn more – no protection of the laws

10. Independent contractor • will be a registered provisional taxpayer • will work his/her own hours • runs his/her own business • will be free to carry out work for more than one employer at the same time • will invoice the employer each month for his/her services and be paid accordingly • will not be subject to usual ‘employment’ matters such as the deduction of PAYE or UIF from his/her invoice, will not receive a car allowance, annual leave, sick leave etc.

11. Vicarious liability • Requirements: • there must be an employment relationship • the employee must have acted unlawfully • the act must have led to a third person suffering damages and • the act must have taken place within the scope and course of employment

12. Example - SAMA Points 1 -3 no problem (registered + time -not more than 6 months) Point 4 – Choice: employee or independent contractor but remember the realities test! *vicarious liability (insurance!) Point 8 – strong indicator of an employment relationship

13. LexisNexis Point 2 and 3 – a clear indication of an employment relationship Point 7 – recourse Point 10 – restraint of trade never part of an independent contractor relationship

14. Agencies Section 53 of the Code of Good Practice: A temporary employment service is a person or business who – • Procures or provides employees to perform work or render services for a client; and • Remunerates those employees Thus – agency pays the locum. Dr pays the agency. In other words the locum is an employee of the temporary employment service

15. Agencies (cont) The relationship between the agency and the locum is usually a Temporary Contract of Employment and the relationship between the medical practitioner and the agency is a Contract of Service The termination of the assignment will automatically bring about the termination of the Temporary Contract of Employment and with each new assignment a new Temporary Contract of Employment is entered into between the locum and the agency

16. Agencies (cont) • THUS – there is no employment relationship between the locum and the medical practitioner, except perhaps for an ‘implied’ contract of work as the medical practitioner will obviously instruct the locum what services are required, how it is to be done etc. • (hypothetical case for discussion)

17. CONCLUSION • Patients should know when a locum is standing in • Is the locum an employee or independent contractor – should be stated • Better to use an independent contractor – but then remember the realities test! • Safest - to use an agency….. THANK-YOU!!