The statutory definition of an employee explicitly excludes an independent contractor.

It is therefore evident that there is a distinct difference between an independent contractor and an employee. This difference is however often difficult to understand and regularly misconstrued in the professional environment.

In order to avoid this uncertainty and disputes, it is important to ensure that one applies certain key principles when establishing a relationship with an independent contractor.

Companies often think that the contract / agreement between two parties is what dictates the type of relationship that exists. Whereas this may be true, to a certain degree, such contract / agreement will not in itself suffice to show the type of relationship.

In a recent case between GM Goliath and the SABC LTD (first respondent) and the CCMA (second respondent), the Labour Appeal Court (LAC) dealt with the risk of abuse of independent contractors on the basis that an independent contractor would not enjoy the same protection by the labour laws as an employee. As a result, when determining if there is an employment relationship, the court will go beyond what is contained in the contract to establish the true nature of the relationship between the parties.

The dominant impression test (the Test) implies that the relationship, as a whole, should be examined to determine whether the impression left looks more like an employment relationship rather than an independent contractor relationship.

Although the Test has not been concretely defined, under common law, the test has been well established.

In State Information Technology Agency (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2008) 29 ILJ 2234 (LAC), the court identified three primary criteria to determine the realities of a relationship:

(1) An employer’s right to supervision and control;
(2) whether the employee forms an integral part of the organisation ofthe employer; and
(3) the extent to which the employee was economically dependent upon the employer.

Practically, some of the aspects that may be taken into consideration to determine the above are whether the person has a company email address, dedicated workspace at the company’s premises, uniform, company provided equipment, forms part of company benefit schemes, etc.

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