adminDavies Ndumiso Sibanda Labour Matters
ONE of the principles widely used in establishing the nature of relationship of parties to an employment relationship in labour cases is the dominant impression test.
However, it is the least understood leading to frequent litigation.
There are many labour disputes that relate to the job title of an employee and the appropriate grade of an employee. For example, it is common to hear a messenger argue that while his job title is that of a messenger, Paterson Grade A2, he is in fact a Clerk Grade B3. Once such cases get to courts the courts will apply the dominant impression test. Simply put the courts will look at whether the job was predominantly that of a messenger or that of a clerk.
The courts will rely on various indicators such as what messenger duties make the job and what clerical duties make the job. The courts could further go into the Paterson Grading and ask questions, what identifies a clerk who is in B3 and then look at the clerical duties of a messenger to establish whether he is a Clerk B3. All these factors put together create what is called a dominant impression.
This reminds me of a messenger in a small organisation who also had the duties of being a petrol attendant in an organisation that had seven motor vehicles which on average filled up once in one and half weeks. He raised a grievance that because one of his duties is to record fuel he was doing clerical work and as such his job title was wrong as he should be called a clerk. The dominant impression test was applied and it was found that his job was predominantly that of a messenger.
One group of people who cause headaches for employers when they claim to be employees are service providers and agents. This is usually common when the organisation wants to terminate the agency contract or the service contract. In such cases we apply the dominant impression test to establish whether it was an employment contract, service contract or agent contract.
The dominant impression test also comes handy where different unions or national employment councils (NECs) claim a particular organisation is their member and the scope or coverage of the union or NEC lacks clarity or the business of the employer cannot fall neatly into one NEC. Once the dominant impression test has been applied it is then possible to place the organisation accordingly.
In practice, the application of the dominant impression test is not as simple as given in this article because the principle has been developed out of case law which needs to be understood so as to also be alive to the limitations and critism that has been levelled against the application of the dominant impression test.
In conclusion, the lessons for employers from the dominant impression test are that they should not think they will always use the cover of cheaper job titles to pay employees low wages as the application of the dominant impression test can prove otherwise. Workers also should not think they can make claims for higher graded job titles in order to get higher wages as the dominant impression test can disapprove their claims.
l Davies Ndumiso Sibanda can be contacted on: E: [email protected]; C: 0772 375 235
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