Employee versus independent contractor

It is often difficult to distinguish between an employee and an independent contractor, so the courts have developed tests to help with this, writes Xander Levendal.

- Xander Levendal.

It is especially challenging to determine whether someone is an employee or an independent contractor when there is no written agreement between the parties, and a dispute arises and the person approaches the Commission for Conciliation, Mediation and Arbitration, claiming to be an employee.

EMPLOYEE

The definition in Section 213 of the Labour Relations Act (No. 66 of 1995), or the LRA, provides that an employee is any person, excluding an independent contractor, who works for another person (or the state) and who receives, or is entitled to receive, any remuneration; and any other person who in any manner assists in carrying on or conducting the business of an employer.

INDEPENDENT CONTRACTOR

Independent contractors are service providers that are appointed to provide a specific product or service to another person or business. A key difference is that an independent contractor is not obliged to perform the work himself/herself and may make use of their own assistants or employees to assist or perform the service.