A complex question that has and is still argued in arbitration and the labour courts. The basics are;
The Labour Relations Act provides that if a person earns less than the threshold set by the minister of labour, the presumption of who is an employee is based on the presence of any one of the following seven factors listed below.
The LRA defines an employee as;
(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.
Regardless of the form of contract, a presumed employee relationship is in place, if any one or more of the following factors is present:
- the manner in which the person works is subject to the control or direction of another person
- the persons hours of work are subject to the control or direction of another person.
- in the case of a person who works for an organization, the person is a part of that organization
- the person has worked for that other person for an average of at least 40 hours per month over the last 3 months
- the person is economically dependent on the other person for whom that person works or renders services
- the person is provided with tools of trade or work equipment by the other person; or
- the person only works for or renders services to one person.
If a person earns more than the prescribed threshold, to determine whether the person is in an employment relationship or is deemed an independent contractor, the above list is used as a guide or the Dominant Impression Test is applied.
For the current threshold amount or further info on the above, please email [email protected]