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Using a locum tenens in private practice Prof Magda Slabbert and Dr Hennie Pienaar. Locums. Locum = holding a place Legal consequences????? ~ employee ~ independent contractor. Locums. The Health Professions Act 56 of 1974 – Health Professions Amendment Act 29 of 2007
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Prof Magda Slabbert and Dr Hennie Pienaar
~ independent contractor
The Health Professions Act 56 of 1974 – Health Professions Amendment Act 29 of 2007
Sec 9 Ethical rules of conduct for practitioners
* written contract
* available to council
No Case law
* temporary suspension
Denel (Pty) Ltd v Gerber (2005) 26 ILJ 1256 (LAC)
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)
(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 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.
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 –
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