ABV 320

Abdul Wahab Hoosain

U18274392

Case study: Employee vs Independent Contractor

The problem in this scenario is that Sizwe is aggrieved since he has received an email from
his supervisor at PC Shop(Pty) LTD stating that his services are no longer required and should
look for another job. I will be following a procedure to determine if he is an employee in terms
of Labour Law and Sizwe’s termination of contract. The legal issue I am determining is whether
Sizwe is an employee or independent contractor with PC Shop(Pty) LTD.

The control test that will be used in this scenario is the dominant impression test. There are
various factors that can prevail an employment relationship. These factors are:

 that the person who alleges to be an employee is obliged to render his services
personally and is not allowed to delegate this obligation
 that he has to keep fixed hours and is paid a regular wage or salary
 that he is subject to the alleged employer’s disciplinary code
 that he is entitled to benefits, such as a pension fund or medical aid scheme
 that he is subject to a degree of control by the employer.

Using the above-mentioned factors to the related case and facts the following will apply:
.
 Sizwe delivers his services to PC Shop(Pty) LTD personally and that he cannot
delegate this obligation of his.
 Sizwe has fixed hours of 9:00 am - 16:00 pm from Monday to Friday. He is also paid a
regular salary of R122 400/R10 200 per month[(6 hours per week not including lunch
as an hour)*5 days*4 weeks*R85 per month*12 months]. This amount is under the
threshold of per R224 080,30 per year (R18 673 month)
 A disciplinary code is evident as he is only allowed to miss work due to being sick
which he was when he could not fix the laptops instructed by Mpho.
 Sizwe has received benefits from PC Shop(Pty) LTD which is the funded training
course for him to be more competitive in the digital market.
 Sizwe is subject to control by his employer as he must abide to a rule that he has to
provide a weekly update regarding his work.

The factors mentioned above, in its independent capacity is not enough for a determination
but in a collective capacity they are sufficient in assisting the determination of Sizwe being an
employee rather than an independent contractor in terms of Labour Law. An independent
contractor is defined where a contractor performs or work to produce a specific result, work
through other persons and only once the result is achieved then is a remuneration paid. This
is clearly not the case for Sizwe’s situation for PC Shop(Pty) LTD.
The most applicable court case is the Building Bargaining Council (Southern & Eastern Cape)
v Melmons Cabinets CC & Another [2001]. This is because in Sizwe’s case he was also titled
as an intendant contractor by his supervisor Mpho. The conditions and facts of Sizwe’s case
shows that the contract is in fact an employment contract. As stated in the case mentioned
above, the court had decided that the relationship “is a sham and it remains a sham even
though Mr Mawa has consented to it”. This outlines that even though Sizwe did work that
constituted to the contract of being an independent contractor it will still be invalid and rather
an employment contract with as proven in the dominant impression test.

The termination of contract is one of the following:

• Reasonable notice by either parties in Section 37 of the BCEA

• Consent of both parties
• Death or incapacity of either party
• Insolvency of the employer
• Effluxion of time
• Operational requirements
• Dismissal

In Sizwe’s case none of the valid terminations was followed/adhered to as Mpho’s reason
was that Sizwe is “merely a contractor” and no procedures were followed. An email that
stated that his services were no longer required does not form part of any procedure.