Using a locum

tenens in private

practiceProf Magda Slabbert and Dr Hennie Pienaar

Locum = holding a placeLegal consequences?????~ employee~ independent contractor

The Health Professions Act 56 of 1974 – The Health Professions Act 56 of 1974 – Health Professions Amendment Act 29 of Health Professions Amendment Act 29 of 20072007

• Silent on the appointment of Silent on the appointment of locumslocums

Sec 9 Ethical rules of conduct for Sec 9 Ethical rules of conduct for practitionerspractitioners

• 6 months6 months• RegisteredRegistered• Not suspended from practiceNot suspended from practice

Sec 18* written contract

* available to council

No Case lawDisciplinary action* fine

* temporary suspension

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)

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

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;

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.

Presumption only applies to those earning less than the threshold

Determined from time to time by the MinisterCurrently R183 000-00 p a (R15 500-00 per

month)Earn more – no protection of the laws

will be a registered provisional taxpayerwill work his/her own hoursruns his/her own businesswill be free to carry out work for more than

one employer at the same timewill invoice the employer each month for

his/her services and be paid accordinglywill 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.

Requirements:there must be an employment relationshipthe employee must have acted unlawfullythe act must have led to a third person

suffering damages andthe act must have taken place within the scope

and course of employment

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

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

Section 53 of the Code of Good Practice:A temporary employment service is a person or

business who – (a)Procures or provides employees to perform

work or render services for a client; and(b)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

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

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)

• 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!!