a. Laws and Guiding Principles
Worker Dispatch Act, which has through an amendment implemented on October 1, 2015, introduced a deemed employment offer when the situaZons described above (Local Limita,ons on Use of Independent Contractors) exist.
b. The Legal Consequences of a Re-Characterisation
Deemed offer of employment under the Worker Dispatch Act:
The client is viewed to have offered direct employment with the Independent Contractor (if the Independent Contractor is an individual working directly for the Client) or the employee(s) of/ person(s) sent by the Independent Contractor (if the Independent Contractor uses the labour of individuals to provide service for the Client).
All the terms and conditions of employment that is deemed to have been offered by the client would be equivalent to the terms and conditions which previously applied if the person was employed by the Independent Contractor (e.g. if the individual was a dispatched worker from an agent, the terms and conditions of employment they had with the agency would automatically apply, including salary).
The worker can establish an employment relationship by communicating their acceptance of the deemed offer to the client. The deemed offer is valid for one year, so the worker has one year to decide and communicate their “acceptance” from the time of the last day of the illegal situation leading to deemed offer of employment.
c. Judicial Remedies Available to Persons Seeking ‘Employee’ Status
Workers who seek confirmation of employee status may seek this through judicial means (lawsuit, labor tribunal, arbitration). Such disputes will likely be on the rise as the year 2018 nears, as explained below (Trends and Specific Cases).