Independant Contractors

Question

I require additional clerical “staff” for six months of every year and would like to engage these people as independent contractors. What are the legal parameters in establishing whether an employer/employee relationship exists when taking on an independent contractor?

Answer

The signed contract should clearly indicate that an independent contractor relationship and not an employer/employee relationship exists. The contractual terms and conditions of the contract and the intention of the parties at the time that it was signed (ie, objectively, was the intention to create the employer/employee relationship or the contract of service/ independent contractor relationship?) are very important factors which are considered when determining the existence of an employment relationship between parties to a contract.

In order to ensure that the person remains an independent contractor and does not become an employee you must try to ensure that the:

  • manner in which the independent contractor works and the hours that he works are not subject to the control and direction of the employer;
  • the independent contractor is not provided with the main/primary tools of trade or work equipment by the employer;
  • independent contractor is not bound to work or render services to the employer exclusively; and
    independent contractor is not disciplined by the employer.

However, these factors are not exhaustive nor are they individually decisive.

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