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Is he an employee or not? These three situations can help you figure that out

by , 22 October 2015
As an employer, it's important for you to know the difference between employees and independent contractors.

Not knowing this, can cost you tens of thousands of rand for leave, claims for unfair dismissal and costly legal fees.

Having said that, it's worth noting that the Code of Good Practice can provide helpful guidelines in determining who is an employee or who is an independent contractor under our labour laws - such as the Labour Relations Act (LRA), the Basic Conditions of Employment Act (BCEA) and so on.

One of the issues the Code can help you with is the presumption of who is an employee - as under the BCEA (Section 83A) and the LRA (Section 200A).

Under this, an employee will be deemed to be an employee of yours under the following three situations:

1. Unfair dismissal proceedings in the Commission for Conciliation, Mediation and Arbitration (CCMA) when it comes to the LRA.
 
2. Proceedings concerning a contract of employment in the Labour Court under the BCEA.
 
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3. An employee can show any of the following factors present:
 
·        You control or direct his work;
·        You control or direct his hours of work;
·        If he works for an organisation, that he's part of that organisation;
·        He works for you for an average of 40 hours per month (in the last three months);
·        He's economically dependent on you and your business;
·        You provide with tools of trade or work equipment; or
·        He only works for, or renders services to, you.
 

Note that The Code of Good Practice also deals with various court cases referring to the above-mentioned distinction of who is an employee or not.

*Also, be careful not to confuse certain employees as with independent contractors. Click here to find out more.
 
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