DISTINGUISHING EMPLOYEES FROM INDEPENDENT CONTRACTORS

[Ivan Israelstam]

A person, who earns below the threshold, is providing services to only one business as per subsection 200(1)A(g)of the LRA but none of the other six factors per subsection 200A are present. That is, the person works in her own way and during her own hours, uses her own tools of trade and is able to live off her investment income if need be. Is she an independent contractor or an employee?

[Michael Bagraim]

There are literally dozens of factors that need to be taken into account before a court can pronounce on the matter. It is a lengthy and comprehensive exercise that has to be undertaken. The courts normally lean in favour of employment as opposed to independence. It also depends very strongly on how much a person earns.

[Patrick Deale]

She is clearly an independent contractor. It follows that she can’t claim deemed employment simply because she earns less than the threshold. She must first qualify as an employee to do so.

[Author]

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